Constance Carter, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 23, 2009
0720080005 (E.E.O.C. Oct. 23, 2009)

0720080005

10-23-2009

Constance Carter, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Constance Carter,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0720080005

Hearing No. 120-1997-04655X

Agency No. 95-0241-SSA (BOS-95-241)

DECISION

Following its October 4, 2007 final order, the agency filed an appeal

which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).

On appeal, the agency requests that the Commission affirm its rejection of

an EEOC Administrative Judge's (AJ) finding of discrimination in violation

of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. The agency also requests that the Commission

affirm its rejection of the relief ordered by the AJ. For the following

reasons, the Commission REVERSES the agency's final order.

ISSUES PRESENTED

The issues presented are: (1) whether the agency issued its final

order and filed its appeal in a timely manner; (2) whether the EEOC

Administrative Judge's (AJ) decision, finding that complainant was

subjected to discrimination based on her sex when she was not selected

for two Administrative Law Judge (ALJ) positions in Little Rock, Arkansas

and New Haven, Connecticut, is supported by substantial evidence in the

record; and (3) whether the AJ properly awarded complainant $30,000.00

in non-pecuniary compensatory damages.

BACKGROUND

At the time of the events giving rise to this complaint, complainant

worked as a Supervisory Staff Attorney, GS-13, at the agency's Office of

Hearing and Appeals (OHA) in Boston, Massachusetts. In 1993, complainant

submitted an application to the Office of Personnel Management (OPM)

for an ALJ position with a federal agency. Complainant's application

was processed by the OPM, and she was deemed qualified for the position

with a rating score of 87.4. Complainant indicated in her application

that she was willing to accept an ALJ position anywhere in the country.

Based upon a needs assessment conducted by the agency for ALJs in various

localities nationwide, OPM forwarded a list of eligible candidates to

the OHA in May 1994. This list, Certificate AJ-94-14, included eligible

candidates ranked by OPM in numerical order based on their rating scores.

Complainant was ranked number 144 out of 213 candidates. In August

1994, OHA requested a second certificate of eligible candidates from

OPM, Certificate AJ-94-15. Complainant was ranked number 93 out of

190 candidates.

After she was certified by OPM, the agency sent complainant a letter

informing her of her certification for consideration for an ALJ position;

asking her to rank her locality preferences for each certificate; stating

that, if selected, she was expected to remain employed at that location

for at least two years before requesting reassignment; and notifying her

that personal interviews would be conducted for any candidates that hadn't

been previously interviewed. Complainant submitted her preference list,

ranking all of the available localities.

The interviews were conducted in Falls Church, Virginia by the Acting

Chief ALJ (RMO1), or the Acting Deputy Chief ALJ (RMO2), the Regional

Chief ALJ for Dallas, Texas (RMO3), and the Regional Chief ALJ for the New

York Region (RMO4). RMO1 indicated that the interview is a significant

factor in the selection process when the top three candidates for a

position opening have very close OPM scores. During the interview,

the panelists asked the candidates a set list of questions and gave

each candidate a composite group score for his/her interview based on

a scale of 1 to 10 points. RMO1 considered individuals that scored

7 points "borderline" candidates for selection, and those that scored

over 8 points were considered to be good candidates. Complainant was

interviewed in January 1994 by RMO2, RMO3, and RMO4, and the panel gave

her a composite interview score of 7 points.

Once candidates submitted their geographic preferences, the agency

went down the list of localities with position openings and matched

each vacancy with candidates that had expressed an interest in working

in that particular locality.1 Based solely on their OPM scores, the

agency selected the top candidates who had expressed an interest in

each locality for an interview. Under the agency's "rule of three,"

the top three candidates for each locality would compete against each

other to fill the vacancy. Candidates not selected for a position would

be placed back into the applicant pool for consideration for the next

two geographic locations of their preference (generally each candidate

would only be considered for three position openings). Complainant was

considered for ALJ position openings in Billings, Montana; San Antonio,

Texas; and Little Rock, Arkansas under Certificate AJ-94-14 and New

Haven, Connecticut; Dallas, Texas; and Hattiesburg, Mississippi under

Certificate AJ-94-15.

RMO1 and RMO2 determined the top candidate for each position, and RMO1

then submitted a final recommendation to the Commissioner through the

Office of the Associate Commissioner or the Deputy Commissioner for

Programs. Generally, RMO1's final recommendation determined who would

be selected. Complainant was not selected for any of the aforementioned

positions.

On February 23, 1995, complainant filed an EEO complaint alleging, in

pertinent part, that she was discriminated against on the basis of sex

(female) when:

(1) On October 4, 1994, she was not selected for the position of ALJ in

the OHA under Certificate AJ-94-15;

(2) She was not selected for the position of ALJ in the OHA, under

Certificate AJ-94-15. On November 14, 1994, she became aware that

candidates with lower scores were selected;

(3) The OHA conducted a pre-hiring interview for the ALJ position (which

she completed in January 1994) that is contrary to OPM's employment

practices, supplants OPM requirements, and is discriminatory against

women; and

(4) One of the ALJ panel interviewers failed to disqualify himself from

her January 1994 panel interview.

The agency ultimately accepted claims (1) and (2) for investigation

and dismissed claims (3) and (4) for untimely EEO Counselor contact.

On appeal, the Commission affirmed the dismissal of claims (3) and (4).

Carter v. Social Security Administration, EEOC Appeal No. 01953660

(August 27, 1996).

At the conclusion of the investigation of claims (1) and (2), complainant

was provided with a copy of the report of investigation and a notice

of her right to request a hearing before an EEOC Administrative Judge

(AJ). Complainant timely requested a hearing.2 An AJ assigned to the

case held a hearing January 15-16, 2003.

On March 13, 2007, the AJ issued an Interim Decision, finding that

complainant was subjected to sex discrimination with respect to two of

the non-selections. The AJ's decision found that complainant failed to

establish a prima facie case of sex discrimination with regard to the

Billings and Dallas vacancies since female candidates were selected for

both positions. However, the AJ found that complainant established a

prima facie case of sex discrimination with regard to the San Antonio,

Little Rock, New Haven, and Hattiesburg non-selections since she belonged

to a protected group; she was qualified for the positions in question;

she was not selected despite being qualified for the positions; and

other candidates outside her protected class were selected.

The AJ found that the agency provided legitimate, nondiscriminatory

reasons for not selecting complainant for all four positions.

Specifically, RMO1 stated that the selectee for the San Antonio position

was chosen because he was a veteran preference eligible candidate,

and the agency was required to select him based upon OPM requirements.

He stated that the remaining selectees were all chosen because the

interview panel gave them scores of 8 or 9 points; they were all well

qualified; and each candidate demonstrated the ability to succeed in

the OHA office environment. RMO2 stated that complainant's interview

responses caused her to question whether complainant would stay in

one geographic region for two or more years, show sensitivity towards

claimants, and be responsive to agency management. RMO2 also stated

that officials who supervised complainant gave her negative references.

The AJ found that complainant established that the agency's reasons for

not selecting her for the Little Rock and New Haven positions were a

pretext for unlawful sex discrimination. The AJ's decision found "the

highly subjective nature of the panel's evaluation of the Complainant's

performance, abilities, and conduct to be totally inconsistent with her

performance evaluations that objectively rated her as outstanding in

the specific areas that caused the panel not to recommend (and select)

the Complainant." The AJ stated that "I also find it hard to believe

that the Complainant would refuse to stay in one geographic location

for more than two years as a reason for giving her fewer points on the

interview when she had already demonstrated in the past of her willingness

to relocate..."

Regarding the San Antonio and Hattiesburg non-selections, the AJ found

that complainant failed to establish that the agency's reasons for its

actions were a pretext for sex discrimination. The AJ found that the

agency was required to select a particular candidate for the San Antonio

position because he was a preference eligible candidate based on his

veteran's status. The AJ also found that "the undisputed record shows

that the [Hattiesburg] selectee . . . scored higher than the Complainant

in the OPM score as well as with interview panel's scores," and agency

witnesses credibly testified that the selectee was chosen because of

his strong credentials and suitability for the position.

On August 7, 2007, the AJ issued a Final Decision awarding complainant

a position in either the Little Rock or New Haven offices, along with

backpay, seniority, and other emoluments associated with the position.

The AJ further awarded complainant $30,000.00 in non-pecuniary

compensatory damages, $95,095.80 in attorney's fees, and $6,288.32

in costs. The AJ also ordered the agency to ensure that discrimination

will not occur in the future and to post a notice in the Regional OHA

in Boston, Massachusetts.

On August 25, 2007, the agency issued a final order rejecting the

AJ's finding that complainant proved that she was subjected to sex

discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, the agency argues that the AJ erred in finding that complainant

was discriminated against based on her sex when she was not selected for

the Little Rock and New Haven ALJ positions. In support of its position,

the agency argues that the AJ improperly attributed a discriminatory

motive to the agency's use of subjective criteria in its ALJ selection

process and improperly relied upon complainant's performance evaluations

as evidence of pretext. The agency does not dispute the attorney's fees

and costs awarded complainant but contests the size of the compensatory

damages award.

In response, through her representative, complainant argues that the

agency's appeal should be denied because the agency's October 4, 2004

final decision and appeal were untimely. Assuming arguendo that the

final decision and appeal were timely, complainant urges the Commission

to reverse the agency's final decision and affirm the AJ's decision

in its entirety. Complainant argues that the agency failed to dispute

any of the AJ's factual findings. She argues that the agency has not

met its burden of proving that the AJ's findings of determination are

not supported by substantial evidence in the record or that there is

countervailing evidence in the record supporting a reversal of the

AJ's credibility findings. She further argues that the AJ's finding

of pretext with respect to the Little Rock and New Haven non-selections

was correct and that the proper remedies were awarded.3

ANALYSIS AND FINDINGS

As an initial matter, we must first address whether the agency issued

its final order and filed its appeal in a timely manner. Pursuant to 29

C.F.R. � 1614.110(a), the agency is required to take final action on the

complaint by issuing a final order within forty (40) days of receipt of

the hearing file and the AJ's decision. If an agency decides not to fully

implement the decision of an AJ, the agency must issue a final order and

simultaneously file an appeal with the Commission in accordance with 29

C.F.R. � 1614.403. Id. If the agency does not issue a final order and

file an appeal simultaneously with the issuance of the order, the AJ's

decision will be deemed ratified by the agency upon the expiration of the

agency's 40-day period for accepting or not accepting the AJ's decision.

EEO-MD-110, Chapter 9, � III(B)(1) n.4 (November 9, 1999).

A review of the record reveals that the agency received a copy of

the hearing file and the AJ's August 7, 2007 Final Decision on August

25, 2007. The agency subsequently issued its final order and filed

the instant appeal on October 4, 2007, which was within the 40 day

limitation period. Although complainant argues that the agency's appeal

was untimely because the agency should have received the hearing file

and the AJ's decision prior to August 25, 2007, the record contains

a copy of the AJ's decision date stamped by the agency on August 25,

2007 as well as an affidavit from an agency official who stated that

she received the hearing file and the AJ's decision and processed the

paperwork on that date. Furthermore, there is no evidence in the record

establishing that the agency received the materials in question prior

to August 25, 2007. Therefore, we find that the agency issued its final

order and filed its appeal in a timely manner.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held. An AJ's

credibility determination based on the demeanor of a witness or on the

tone of voice of a witness will be accepted unless documents or other

objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

To prevail in a disparate treatment claim, complainant must satisfy the

three-part evidentiary scheme fashioned by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially

establish a prima facie case by demonstrating that she was subjected

to an adverse employment action under circumstances that would support

an inference of discrimination. Furnco Construction Co. v. Waters, 438

U.S. 567, 576 (1978). Proof of a prima facie case will vary depending

on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804

n. 14. The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

In order to establish a prima facie case of sex discrimination,

complainant must show: (1) she is a member of a protected class; (2)

she was qualified for the position; (3) she was not selected for the

position; and (4) she was accorded less favorable treatment from that

given to persons otherwise similarly situated. See McDonnell Douglas,

411 U.S. at 802; Williams v. Department of Education, EEOC Request

No. 05970561 (August 6, 1998). We concur with the AJ that complainant

established a prima facie case of sex discrimination when she was not

selected for the Little Rock and New Haven ALJ positions because she

belonged to a protected class; she was found to be qualified for the

positions; she was not selected despite being qualified for the positions;

and other candidates outside her protected class were selected.

The Commission also concurs with the AJ's determination that the agency

articulated legitimate, nondiscriminatory reasons for not selecting

her for the Little Rock and New Haven positions. RMO2 testified at

the hearing that, once the top three candidates were identified for a

particular ALJ position opening, the interviews were the decisive factor

in making the selection. RMO1 and RMO2 testified that complainant was

not selected because she was not the most qualified candidate for the

positions based on the recommendation of the interview panel.

RMO1 and RMO2 testified that the panelists were looking for certain

qualities during the interviews, including the ability to relate well

to claimants and in the hearing office setting, the ability to handle

a high volume of cases, and a willingness to remain in a particular

locality for two or more years. RMO1 and RMO2 gave a rating score of

9 points to the selectee for the Little Rock position. RMO1 testified

that the selectee seemed hard-working; had good people skills; appeared

to be able to work well in the hearing office environment and adhere to

procedures as well as the chain of command; had a "clear understanding"

of what the agency was looking for in terms of having empathy for the

clientele they served; and committed to relocate anywhere mentioned

"without reservation." Similarly, RMO2 stated that the selectee

worked well with people, seemed sensitive to claimants, and expressed

a willingness "in no uncertain terms" to go relocate to a new location

and stay there. Regarding the New Haven ALJ position, RMO1 testified

that he gave a rating score of 8 points to the selectee. He stated that

the selectee had significant adjudication experience, was "well-prepared

professionally," and appeared to be an individual "who would blend well

into our hearing offices environment."

RMO2 testified that her interview with complainant left her with

reservations about complainant's willingness to remain in a locality

for two or more years, her ability to relate well to claimants during

hearings, and her responsiveness to agency management. RMO2 further

testified that she contacted the Regional Chief ALJ for New England,

complainant's second level supervisor, and a Regional Management Officer

to obtain references from people who had worked with complainant.

She stated that the officials provided negative references.

Complainant now bears the burden of proving by a preponderance of the

evidence that the agency's articulated reasons were a pretext for sex

discrimination. Pretext may be shown either directly by showing that a

discriminatory reason more likely motivated the employer or indirectly

"by showing that the employer's proffered explanation is unworthy

of credence." Burdine, 450 U.S. at 256. Rejection of the employer's

proffered reason permits the trier of fact to "infer the ultimate fact

of intentional discrimination." Hicks, 509 U.S. at 511.

Upon review, the Commission finds that substantial evidence in the record

supports the AJ's determination that the agency's articulated reasons for

not selecting complainant for the Little Rock and New Haven ALJ positions

are unworthy of belief. We concur with the AJ's determination that

"the record is replete with vague perceptions, intuitions, and feelings

that were not premised upon the objective record."

RMO2 testified that complainant was not selected, in part, because she

was concerned with complainant's willingness to take on an assignment in

a particular location and stay for a two-year period. RMO2 noted that

complainant stated during her interview that she was willing to relocate

anywhere, if necessary, and "make the sacrifice" with the intention of

getting her husband a transfer later on. This suggested to her that

complainant could be a "problem" ALJ in the future who would attempt to

leave either locality before the conclusion of her two year commitment.4

However, the AJ found that complainant credibly testified at the hearing

that she had expressed to the interview panel in no uncertain terms that

she would be willing to accept any of the available ALJ positions and

remain there for at least two years. She had also informed the panel

members that she had previously relocated to Illinois for over three years

to accept an attorney position with the OHA. Additionally, complainant

was informed of the agency's two year minimum requirement when she was

informed of her certification by OPM, and she returned her locality

preference list ranking all available geographic locations nationwide.

RMO2 also testified that complainant's interview performance left her

with concerns about complainant's "temperament," or how she related

to staff and the types of claimants the agency sees on a daily basis,

and her ability to be responsive to agency management. With respect

to complainant's attitude toward claimants, RMO2 testified that she

felt complainant failed to "volunteer information" during her interview

indicating that she was sensitive to the particular type of claimants

that would be before her as an ALJ. However, complainant testified that

she informed the panel during the interview that she was sensitive to the

fact that ALJs often deal with unsophisticated and disabled claimants.

The AJ found complainant's testimony regarding her empathy towards

claimants more credible than RMO2's testimony, noting that RMO2 was

unable to clearly explain any basis for her concern beyond her own

subjective impression. Moreover, complainant's performance appraisals

in the record clearly state that she worked well with members of the

public and had strong interpersonal skills. We find no evidence in the

record that undermines the AJ's credibility determination.

RMO2's concern regarding complainant's responsiveness to agency management

was premised on negative references she received from agency officials

that worked with complainant as well as vague feelings and opinions

she developed during complainant's interview. RMO2 testified that the

Regional Chief ALJ for New England indicated that complainant had the

ability to do the work but was "selfish in her approach, anti-management,

not a team player," and the Regional Management Officer was in agreement.

However, RMO2 did not recall any examples of these traits that were

provided by the officials, and affidavits provided by the two officials

contradict her testimony.5 The Regional Chief ALJ for New England stated

in his affidavit that he could not recall speaking with RMO2 about

complainant's performance. He stated that he signed [complainant's]

appraisals as a reviewing official and would have no reason to question

the outstanding ratings "unless I had a specific reason or knowledge of

the employee." The Regional Management Officer provided an affidavit

stating that he had no recollection of speaking with RMO2 regarding

complainant's work performance. He stated that he "would not use the

terms or comments . . . such as anti-management, or selfish. I probably

would have said that [complainant] was a good attorney, with excellent

writing skills." Although he stated that complainant's management skills

could use improvement, he noted that there were management problems in

the entire hearings office. He also stated that he could not "recall

ever having any problems with her personally."

We note that complainant's performance appraisals and awards given

to complainant during the relevant time period further contradict

RMO2's testimony that complainant appeared to be "anti-management."

These appraisals reflect that complainant consistently performed at

an "outstanding" level and demonstrated an ability to work well with

management, provide sound leadership to agency personnel under her

supervision, and deal well with outside stakeholders and the public.

Her 1991 performance appraisal indicated that "[complainant] has

been a resource person not only for the employees under her direct

supervision but for all hearing office and regional employees" and

that she "displays outstanding personal and interpersonal work habits.

Her work is of the highest qualities and she enhances the work of

those she supervises. Her interpersonal skills are extraordinary."

Her 1994 and 1993 performance appraisals reflected outstanding ratings

and included similar language regarding her ability to work well with all

agency employees in the hearing office environment. Although the agency

argues on appeal that the interview panel members were not aware of the

ratings/comments on her performance appraisals because they were not

provided with copies of the appraisals, the record reflects that RMO4,

who served on the interview panel, signed complainant's 1990 and 1991

performance appraisals and should have been aware of her outstanding

ratings.

On appeal, the agency argues that the AJ improperly attributed

a discriminatory motive in the agency's use of subjective criteria

in its ALJ selection process and "unnecessarily intruded" into the

agency's subjective promotion decisions. We disagree. Although the

application of subjective criteria in a selection process is permissible,

the Commission recognizes that the use of subjective criteria "may offer

a convenient pretext for unlawful discrimination." O'Brien v. Social

Security Administration, EEOC Appeal No. 07A10034 (October 3, 2001)

(citations omitted). Here, we find that the AJ properly examined the

subjective criteria the agency utilized in the selection process and found

that the agency's rationale for not selecting complainant was pretextual

because the agency's reasons were inconsistent with the objective evidence

in the record and testimony provided at the hearing. RMO2's rationale

for not selecting complainant was contradicted by the evidence, including

statements in the affidavits submitted by the Regional Chief ALJ for New

England and the Regional Management Officer calling into question RMO2's

testimony that they gave complainant negative references. RMO's testimony

at the hearing was also found less credible than complainant's testimony

regarding her sensitivity towards claimants and her willingness to

remain in a locality for two or more years. The Commission notes that

credibility determinations of an AJ are entitled to deference due to the

AJ's first-hand knowledge, through personal observation of the demeanor

and conduct of the witnesses at the hearing. See Esquer v. United

States Postal Service, EEOC Request No. 05960096 (September 6, 1996).

Based on the foregoing, after a careful review of the record, we discern

no basis to disturb the AJ's finding that complainant was discriminated

against based on her sex when she was not selected for the Little Rock

and New Haven ALJ positions.

Turning to the issue of remedies, a job applicant has a right to be free

from discrimination throughout the selection process. If the process is

discriminatory at any phase, the applicant must be awarded full relief,

such as the position retroactively, unless the agency shows by clear

and convincing evidence that even in the absence of discrimination, the

applicant would not have been selected. See DeReyna v. Department of the

Navy, EEOC Appeal Nos. 01980077, 01980078, 01980079 (January 19, 2001).

Thus, complainant is entitled to retroactive placement in the position

unless the agency can show by clear and convincing evidence that, even

absent discrimination, complainant would not have been selected. Id;

see also 29 C.F.R. � 1614.501(c)(1). As discussed above, the agency's

rationale for not selecting complainant is not worthy of belief. As a

result, we find that the agency has not met its burden of establishing,

by clear and convincing evidence, that absent the discrimination against

complainant it still would not have selected complainant. We concur with

the AJ that retroactive placement into an ALJ position in either Little

Rock or New Haven, or a substantially equivalent position, retroactive

to the date of the selections is an appropriate remedy in this case.

Pursuant to section 102(a) of the Civil Rights Act of 1991, a

complainant who establishes his or her claim of unlawful discrimination

may receive, in addition to equitable remedies, compensatory damages

for past and future pecuniary losses (i.e., out of pocket expenses)

and non-pecuniary losses (e.g., pain and suffering, mental anguish).

42 U.S.C. �1981a(b)(3). For an employer with more than 500 employees,

such as the agency, the limit of liability for future pecuniary and

non-pecuniary damages is $300,000. Id.

The particulars of what relief may be awarded, and what proof is necessary

to obtain that relief, are set forth in detail in EEOC Enforcement

Guidance: Compensatory and Punitive Damages Available under Section

102 of the Civil Rights Act of 1991, No. N 915-002 (July 14, 1992).

Respondent must submit evidence to show that the agency's discriminatory

conduct directly or proximately caused the losses for which damages

are sought. Rivera v. Department of the Navy, EEOC Appeal No. 01934157

(July 22, 1994).

The Commission notes that because there is no precise formula by which

to calculate non-pecuniary damages, the AJ is afforded broad discretion

in determining such damages awards. To be sustained on appeal, an award

of non-pecuniary damages should not be "monstrously excessive" standing

alone, should not be the product of passion or prejudice, and should be

consistent with the amount awarded in similar cases. See Ward-Jenkins

v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)

(citing Cygnar v. City of Chicago, 865 F.2d 847, 848 (7th Cir. 1989)).

Upon review, the Commission finds that the record supports the AJ's

award of $30,000.00 in non-pecuniary compensatory damages. The evidence

reflects that the agency's discriminatory actions caused complainant to

suffer emotional pain and suffering, such as embarrassment, humiliation,

severe headaches, long periods of crying, and high blood pressure,

requiring her to take six weeks off from work in 1994. Complainant also

stated that the agency's actions caused her to consider leaving the legal

profession and withdraw from family, friends, co-workers, and social

and professional functions. She submitted declarations from her husband

and daughter addressing how the agency's actions caused her to withdraw,

suffer from depression, and become a "different person." We find that

the agency failed to establish that the award is "monstrously excessive"

standing alone, the product of passion or prejudice, and inconsistent

with the amount awarded in similar cases. See Moore v. Department of

Justice, EEOC Appeal No. 07A60017 (October 17, 2006) (awarding $32,500.00

in non-pecuniary compensatory damages in a non-selection case where

complainant suffered from intense mental anguish, loss of enjoyment

of life, humiliation, injury to reputation, loss of self-esteem,

a lack of energy, and damage to familial relationships due to the

agency's actions); Garrett v. United States Postal Service, EEOC Appeal

No. 07A30024 (February 25, 2004) (awarding $35,000.00 in non-pecuniary,

compensatory damages after finding sex discrimination for non-selection

and failure to transfer where complainant experienced emotional distress,

depression, anger, embarrassment and humiliation, headaches, and sleep

disturbances that were corroborated by a friend).

We further find that the AJ properly awarded complainant $95,095.80 in

attorney's fees and $6,288.32 for associated costs. We note that the

agency states on appeal that it does not contest the AJ's ruling with

respect to the size of the attorney's fees and costs awarded.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the agency's final

order is REVERSED and REMANDED for the agency to take corrective action

in accordance with this decision and the ORDER below.

ORDER

The agency is ORDERED to take the following remedial actions:

(1) Within ninety (90) calendar days of the date of this decision,

complainant shall be placed in either the Little Rock, Arkansas or New

Haven, Connecticut ALJ positions, or a substantially equivalent position,

retroactive to the date of the selections at issue in this matter;

(2) Within ninety (90) calendar days of the date this decision becomes

final, the agency shall pay complainant back pay, interest, and other

benefits due complainant, pursuant to 29 C.F.R. � 1614.501. Complainant

shall cooperate in the agency's efforts to compute the amount of back pay

and benefits due, and shall provide all relevant information requested

by the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to the complainant

for the undisputed amount within ninety (90) calendar days of the date

the agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

(3) Within sixty (60) calendar days of the date of this decision, the

agency shall remit to complainant $30,000.00 in non-pecuniary compensatory

damages;

(4) Within sixty (60) calendar days of the date of this decision, the

agency shall remit to complainant $95,095.80 in attorney's fees and

$6,288.32 in costs;

(5) Within sixty (60) calendar days of the date of this decision, the

agency shall providing the responsible management officials with eight

(8) hours of remedial EEO training regarding Title VII; and

(6) The agency shall consider taking disciplinary action against the

agency officials found to have discriminated against complainant.

The Commission does not consider training to constitute disciplinary

action. The agency shall report its decision. If the agency decides to

take disciplinary action, it shall identify the action taken. If the

agency decides not to take disciplinary action, it shall set forth the

reason(s) for its decision not to impose discipline.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation, including

evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Boston, Massachusetts OHA facility

copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant

in the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

____10/23/09______________

Date

1 It is unclear from the record how the agency determined the order in

which the locality vacancies would be considered. The record reflects

that RMO1 and RMO2 were provided with a final list.

2 This case has a long procedural history that included a protracted

discovery period; recusal of the first administrative judge assigned to

the case; destruction of the complaint file and initial hearing record

due to the events of September 11, 2001; reconstruction of the file;

a lengthy hearing process; and several rulings/orders issued by both

of the AJs assigned to the case. The AJ's Final Decision provides a

detailed summary of the procedural history, and the Commission will not

reprint this history here.

3 On appeal, neither the agency nor complainant contest the AJ's findings

with respect to the Billings, Dallas, San Antonio, or Hattiesburg

non-selections, or any of the previous rulings on motions issued during

the hearing process. Therefore, the Commission will not address these

four non-selections or any of the AJs' rulings on motions previously

filed by the parties in the instant decision. See Equal Employment

Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),

Chapter 9, � IV.A. (November 9, 1999).

4 RMO2 was also aware that, in 1991, RMO4 had denied complainant's

husband's request to transfer to the Boston office from another city to

work in the same office as his wife.

5 The Regional Chief ALJ and the Regional Management Officer were

unavailable to testify at the hearing due to their retirement from

federal service.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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