Emery S.v.Fed. Deposit Ins. Corp.

Equal Employment Opportunity Commission

Sep 11, 2020

EEOC Appeal No. 2020001130 (E.E.O.C. Sep. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Emery S.,1
Complainant,

v.

Jelena McWilliams,
Chairman,
Federal Deposit Insurance Corporation,
Agency.

Appeal No. 2020001130

Hearing No. 570-2015-00218X

Agency No. FDICEO-14--030

DECISION

Following its November 26, 2019, final order, the Agency filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. §
1614.403(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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission REVERSES the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Economic Analyst,
CG-12 at the Agency’s Division of Insurance and Research (DIR) in Washington, District of
Columbia. On December 15, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Caucasian), sex (male), disability (perceived
mental disability, 60% disabled veteran), age (48), and reprisal for prior protected EEO activity
when:
1. On or about February 27, 2014, Complainant was not selected for a position as a Senior

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Financial Economist, advertised under vacancy announcement numbers 2013-HQD-B0941
and 2013-HQ-B0939; and

2. On or about February 27, 2014, the Agency informed Complainant that he did not score
high enough to be included on the roster for the Senior Financial Economist position,
advertised under vacancy announcement numbers 2013-HQD-B l005 and 2013-HQ-B
1004.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
AJ1 held a hearing on December 15, 2016, and on February 9 and 10, 2017; and issued a
preliminary decision in favor of Complainant on July 24, 2019.

AJ1 found that the FDIC did not select Complainant for a position as a Senior Financial Economist,
advertised under vacancy announcement numbers 2013-HQD-B0941 and 2013-HQ-B0939
because of his sex, age, and in reprisal for EEO activity; and did not include him on the roster for
the Senior Financial Economist position, advertised under vacancy announcement number 2013-
HQD-B l005 because of Complainant’s sex, age, and in reprisal for EEO activity. The AJ also
found that Complainant failed to prove by the preponderance of the evidence that the Agency
unlawfully discriminated against him because of his race or disability.

Following is a summary of the undisputed facts as laid out in the AJ’s decision:

Complainant is a qualified individual with a disability for the position of Senior Financial
Economist and Financial Economist (i.e. with his disability, he can perform the essential functions
of the positions at issue with or without an accommodation). Complainant’s resume contains the
term “veteran preference CPS” which indicates that he is a veteran with a thirty percent disability
rating.

Complainant held a doctorate degree in economics; and during his time at the University, he served
as an Instructor for courses in the following areas of study: economics; statistics; and econometrics.
Prior to beginning his tenure at the Agency in 2008, Complainant served as a Teaching Assistant
for several courses in economics and politics; as a Visiting Assistant Professor of Economics; as
Director of Academic Affairs; and he had served on active duty in the U.S. Army as an Associate
Professor of Military Science and Leadership.

Complainant previously filed a grievance complaining of discrimination based on EEO protected
activity. In July 2012, Complainant filed an EEO complaint against the Agency, and in 2013 he
filed a lawsuit in federal court alleging the Agency, among other things, discriminated against him
because of his race, sex, age, disability, and reprisal.

Regarding Claim 1, Complainant timely applied for the advertised position under both
announcements. He was deemed qualified for the Senior Financial Economist position, and
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referred to the selecting official for consideration. The Chief of the Banking and Regulatory Section
in DIR, CM-2, served as the selecting official (SO) for this position. Complainant participated in
a telephonic interview for the Senior Financial Economist position. Complainant was the only
candidate who participated in a telephonic interview for the position; the other candidates were
interviewed in person.

In the hiring process, the interview panel consisted of three panelists: the SO (P1, P2, and P3). P1
was aware of Complainant’s approximate age, sex, and prior grievance filing. There is no evidence
that he was aware of Complainant’s race. The panel interviewed six candidates, including
Complainant, who was not selected for the position. The selectees were two females (S1, who
was 21 years younger than Complainant; and S2, who was one year older than him). S1 had only
a bachelor’s degree at the time of her interview; and had only taken two courses in economics and
statistics as part of an MBA program. Her first two years at the FDIC were in an entry-level
Economic Research Assistant position; and P2, who previously supervised her, had encouraged
her to apply for the position. He also testified that someone, who he did not identify, told him not
to hire Complainant.

The position at issue, for which Complainant was not selected, entailed primarily doing regulatory
analysis for rule making, such as cost benefit analysis and legal compliance. While Complainant
was working on his graduate degrees, he was teaching economics, econometrics, statistics, and
micro and macroeconomics, including teaching undergraduate students like S1. One of his fields
of expertise was in public economics, which specifically uses cost benefit analysis, and is
something that he taught to his undergraduate students.

According to the findings of the AJ, in his various previous positions, Complainant not only
evaluated policies, but had written policies as well. He received top ratings throughout his military
and academic careers. He had extensive communication skills, had received teaching awards, and
received an award whereby he was selected as the top graduate by the 212 peers in his military
leadership school. Complainant’s resume extensively details the quality and complexity of his
research and experience in financial analysis, which was relevant to the position’s regulatory
analysis for rulemaking duties.

With respect to the interview process, the AJ found that Complainant’s answers to each of the
interview questions he was asked did meet the benchmarks for each question for the CG-13 level
Senior Financial Economist position that is the subject of Claim 1. The AJ found that the interview
panel did not give Complainant proper credit for each of his answers. For example, Complainant
was marked down for one answer not including “collaboration tools” used in the landfill example
that he discussed, even though meetings he conducted during the project he described as a
collaboration tool. The AJ further noted that “collaboration tools” are a specific benchmark for a
CG-14 position, not the CG-13 position Complainant applied for.

None of the interviewers’ notes state that they found Complainant arrogant. The interviewers did
not state in their affidavits what they found off-putting about anything he said in the interview. At
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the hearing, P2 conceded that what they called “arrogance” could have been confidence, and P1
testified that he did not find him to be arrogant during the interview.

P1 and P2 testified that S1 was “poised” and “confident.” The AJ found that although the
interviewers testified that Complainant gave vague answers in his interview, their notes do not
support this conclusion. The interviewers inflated the quality of the interview answers and
importance of the projects described by S1, and discounted the quality of the interview answers
and importance of the projects described by Complainant.

Regarding Claim 2, on February 12, 2014, Complainant applied for the advertised position at issue
under both announcements. His application under announcement 2014-HQ-B1004 was rejected
for being untimely but Complainant's application under announcement 2014-HQD-B1005 was
accepted because of his disabled veteran status.

The FDIC, like most Federal agencies, uses an on-line automated recruitment process through
USAJobs. Applicants for the Financial Economist position were required to respond to a vacancy
announcement questionnaire with information regarding the applicant's skills and expertise. Each
candidate's application was electronically accepted by the automated on-line system, which scored
the answers to the assessment questions to determine the ranking of the applicant.

In accordance with applicable legal requirements, the Agency utilized category rating procedures
in connection with this selection. Under category rating, applicants who meet basic minimum
qualification requirements for the position are ranked by being placed in one of two or more quality
ranking categories instead of being ranked in numeric score order. The Agency established three
quality categories in connection with this position. The Agency referred all candidates in the
highest quality category (Category A) to the SO for consideration.

In a “category rating system,” all disabled veterans who make it to the highest quality category are
automatically put to the top of the referral list. The agency would not be allowed to select any
non-veteran without receiving pass-over authority from the Office of Personnel Management
(OPM). For this position, a Subject Matter Expert (SME) conducted a review of each applicant
who was ranked among the top candidates to ensure the candidate met minimal qualifications and
to verify that the applicant's answers to the vacancy announcement questions were substantiated
by the information in the candidate's application. Once the SME review was complete, certificates
of qualified candidates for each announcement were prepared. Complainant's self-rated score
placed him in Category A.

A Senior Financial Economist served as the SME (SME1) for Complainant's application. SME2,
who was aware of Complainant’s sex and approximate age from his resume, reviewed applications
for this position as well. There is no evidence that she was aware of Complainant’s race or
disability. Upon reviewing Complainant's application materials, SME1 reported that his responses
to four of the assessment questions (questions 4, 5, 6, and 9) were not supported by his application
materials. She marked these with X’s, and marked some responses with “?” where she was not
sure. As a result of SME1’s review, the responses to these questions were adjusted.
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The Chief of the Administrative Program Management Section (CAPMS) within the DIR serves
as a conduit between DIR and HR. CAPMS admitted that she took SME1’s assessment at face
value and made the adjustments as she interpreted SME1’s notes, with Xs meaning “not
supported,” without having any follow-up conversations with SME1. CAPMS explained that for
other applicants HR would ask the SME if there were questions. She however did not do this for
Complainant because she had been involved in his prior EEO activity. In fact, CAPMS
intentionally did not go through any pages of Complainant’s application because she had provided
an affidavit for an EEO case he had filed in the past. An HR contract employee (HR1) would then
recalculate Complainant’s score based on CAPMS’s “not supported” notation meaning that the
SME did not find the questionnaire response to be supported by the resume.

The AJ determined that Complainant’s responses to questions 4, 5, 6 and 9 were in fact supported
by his application. By a candidate having a Ph.D. in economics and having extensive experience
teaching in economics, any other Ph.D., such as SME1, would have known, for example, that that
candidate would have necessarily had experience in multi-variant linear and logistic regressions,
non-parametric tests, presenting research, and developing theoretical economic or econometric
financial models. SME1 also had Complainant’s transcripts which had much of the substantiating
information. As a result of the adjustments, Complainant's score placed him in Category B. SME1
also downgraded three other applicants from Category A to Category B. Three of the four
downgraded were males over 40.

The AJ also found that SME1 made assumptions in favor of applicants outside of Complainant’s
protected classes where she was unable to point to support in those candidates’ resumes for the
questionnaire responses that she did credit, but made no assumptions in favor of Complainant.
SME1 downgraded Complainant’s questionnaire responses but did not downgrade the responses
of candidates outside of Complainant’s protected classes that she would have had to have similarly
considered “unsubstantiated”, had she reviewed them consistently.

SME1 testified that the hiring calendar for economists at the FDIC correlates with the Ph.D.
candidates’ academic calendars and Ph.D. candidates’ recruiting conference meetings, and the
chosen candidates “typically begin working on a negotiated basis, based on when they feel
comfortable finishing their dissertation.” The AJ asserted that this testimony is tantamount to an
admission that most economist hires at the FDIC are new Ph.D.s and Ph.D. candidates, not
seasoned or older applicants. Someone, who was not identified, had told SME1 that Complainant
had applied for the same position before. The HR Officer, (HRO), who is not an economist and
whose education background was in theater, communications and psychology, testified that
because Complainant complained that he was not being treated fairly, she did perform a
reconsideration of the downgrading of his application. She testified that she looked at the changes
made by the SME and looked at Complainant’s resume to see if the SME marked down answers
that were supported within the resume. She found no evidence that the SME marked down answers
that were supported within the resume. She did admit that she had no knowledge of what some of
the terms describing the experience he was marked down for allegedly not having even meant. For
example, she did not know what the terms “multivariate linear and logistic regression” meant, and
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would not be able to identify what tasks would use those types of analyses. She therefore deferred
to the judgment of the SME.

Complainant was not referred to the SO for consideration because only those applicants in
Category A after the SMEs evaluation were so referred. In 2015, Complainant was selected for a
CG-13 Senior Financial Economist in DIR. The duties for this position are identical to the position
for which he interviewed in December 2013 and for which he was not selected. In 2016,
Complainant was promoted to a CG-14 Senior Financial Economist.

On October 17, 2019, AJ2 issued a final Decision, awarding damages and attorney fees to
Complainant but he was not awarded placement into one of the positions at issue because he had
been promoted to a Senior Financial Economist position shortly after the non-selections. In its
August 13, 2019, response to Complainant’s Petition for Attorney’s fees, Pursuant to 29 C.F.R. §
1614.50l(e) and AJ1’s July 4, 2019, preliminary decision, the Agency challenged Complainant's
request for reimbursement of $806.00 in fees because several items of work identified in the Fee
Petition were not reasonably necessary for the processing of his complaint. The Agency also
objected to Complainant's request for reimbursement of $3,000.00 in expert witness fees because
the witness was not approved to testify at hearing, and his input was not reasonably necessary to
the case. In response to the Agency’s objections, AJ2, in her October 17, 2019, decision denied
those items of work that were not reasonably necessary for the processing of Complainant’s
complaint. She also denied his request for reimbursement of $3,000.00 in expert witness fees.

The Agency subsequently issued a final order rejecting the AJ’s finding that Complainant proved
that the Agency subjected him to discrimination as alleged, stating that it will not implement the
AJ’s Decision finding discrimination in this case. The Agency also stated that it will not provide
interim relief (including back pay, compensatory damages, and attorneys' fees payments) pending
the outcome of its appeal, asserting that if the Commission upholds the AJ’s Decision, the Agency
will pay the amount due together with interest from the date of the original Decision as provided
by the Commission’s regulations. The instant appeal followed.

CONTENTIONS ON APPEAL

In its Appeal Brief, among other things, the Agency states its explanations for the non-selection
decisions, asserting that the AJ’s findings of discrimination are not supported by substantial
evidence and should be reversed. The Agency contends that though Complainant was qualified,
unlike S1 and S2, Complainant was unable to demonstrate that he possessed the requisite
communication and collaboration skills to function effectively in the Senior Financial Economist
position at issue in Claim 1; and that he was not referred for consideration for the Financial
Economist position at issue in Claim 2 because his score placed him in Category B, and only those
candidates in Category A were referred to the SO. The Agency requests that judgment be found
in its favor, asserting that Complainant's request for additional compensatory damages lacks merit.

In his Appeal Brief, among other things, Complainant reiterates his allegations, requesting that the
Agency's appeal be summarily denied; that his appeal of the Agency's final order, which he asserts
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is legally deficient on its face, be granted; and that the AJ’s decision be affirmed with modifications
to allow for a finding of additional compensatory damages to which he is entitled.

STANDARD OF REVIEW

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.

ANALYSIS AND FINDINGS

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, at § VI.B. (Aug. 5, 2015).

After a careful review of the record in the instant appeal, we find that the AJ correctly determined
that Complainant was subjected to discrimination when he was not selected for the two positions
to which he applied. We also find that the Agency did not present any persuasive evidence to
support a different outcome because record evidence supports an inference that discrimination
occurred; and the AJ’s findings of discrimination are supported by substantial evidence.

A prima facie case of discriminatory nonselection may be established by showing: (1) the
complainant is a member of a protected group; (2) the complainant applied and was qualified for
a position for which the employer was seeking applicants; (3) that complainant was not selected
for the position; and (4) that an applicant not in complainant's protected group was chosen for the
position under circumstances that, if explained, would support an inference of discrimination. See
McDonnell Douglas, 411 U.S. at 802.

In the instant complaint, Complainant was a 48-years old male at the time of the events giving rise
to his allegations. As the Agency acknowledged, Complainant was qualified, and applied for two
separate positions; and he was not selected for either of those positions. Two females, including
S1 who was 21 years younger than Complainant, were selected for one of those positions. He also
engaged in protected EEO activity that at least some of the agency officials who participated in
the selections were aware. Under these circumstances, therefore, Complainant has established a
prima facie case of discriminatory non-selection with respect to his age, gender and reprisal.

We further agree with the AJ that Complainant showed that the legitimate, nondiscriminatory
reasons set forth by the Agency were in fact pretext for age and gender discrimination as well as
retaliation. We find that the Agency’s assertions that Complainant lacked the requisite
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communication and collaboration skills for the position at issue in Claim 1 and that he deserved to
be downgraded to Category B in Claim 2 lack credibility.

The AJ correctly found that with respect to the position in Claim 1, Complainant's qualifications,
including a Ph.D. degree in the relevant field and many years of related experience, are superior
as compared to those of S1, an entry level Bachelor’s degree holder who had only taken two
relevant courses as part of an MBA program. These basic facts demonstrate pretext. In a non-
selection case, pretext may be demonstrated by a showing that Complainant's qualifications are
observably superior to those of the selectee. See Complainant v. United States Postal Serv., EEOC
Doc. No. 0120120519, (Apr. 10, 2014) (citing Williams v. Dept. of Educ., EEOC Request No.
05970561 (Aug. 6, 1998)).

Moreover, we find that the Agency’s contentions that, despite his qualifications, Complainant was
unable to demonstrate that he possessed the requisite communication and collaboration skills to
function effectively in the Senior Financial Economist position at issue shows pretext for
discrimination. Complainant possessed many years of experience as an instructor, including
teaching three of the pertinent courses required for the position. The contention is also weakened,
as the AJ aptly noted, by SO’s testimony that he was told not to hire Complainant; and by the fact
that the interviewers’ notes did not support their conclusions regarding Complainant’s interview
responses.

Regarding the position at issue in Claim 2, SME1 determined that various experiences
Complainant stated in his answers that he possessed were not supported by his application
materials. Her determination resulted in Complainant’s scores being downgraded. However,
based on Complainant’s statements, those determinations were inaccurate because his
questionnaire responses were supported by his resume and other application materials. The
Agency presented no persuasive evidence to refute Complainant’s statements. Rather, it
contended that Complainant was not referred for consideration for the Financial Economist
position because his score placed him in Category B. Those contentions are however defeated by
testimonies provided by HR staff, including CAPMS who did not question SME1’s assessment,
which she would have done for other applicants, because she had provided an affidavit in
Complainant’s prior EEO complaint. Moreover, the Agency did not dispute that SME1 also
downgraded three other male applicants over age 40 (inside of Complainant’s protected sex and
age groups) from Category A to Category B. This indicates a preference for younger female
applicants.

As the AJ noted, from the significant irregularities in the interview process, to SME1’s statements
indicating that she was looking for recent graduates to pass on to the final selection process,
sufficient evidence was presented to show that Complainant’s age, gender and reprisal played a
motivating role in his nonselection for both positions.

With respect to Complainant’s race and disability bases, as the remedies would not differ under
these bases, we see no need to address them in this decision.

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On appeal, Complainant requested that the AJ’s damages award in his favor be modified to allow
for a finding of additional compensatory damages to which, he asserted, he is entitled. This
includes an amount higher than $10,000 for his pain and suffering, stating that his emotional
distress manifested in insomnia and depression.2 Complainant contended that the AJ's decision
should be further modified to render an award of appropriate interest on his back pay award at the
maximum allowable rate; requested an additional lump sum payment as reimbursement for his
increased tax liability stemming from the lump sum back pay; and his out of pocket costs in hiring
a CPA to calculate such increased tax liability. Complainant also requested leave to file a new
petition for attorney fees and expenses should the Agency's appeal be denied or should his appeal
be granted.

We agree that Complainant's request for additional compensatory damages lacks merit because he
presented no persuasive evidence to show that he suffered any additional tangible harm beyond
those considered by the AJ in her decision for which the Agency should be held liable. We grant
Complainant leave to submit to the agency a request for additional attorney’s fees for pursuing this
appeal. Complainant may also submit to the agency calculations for additional tax consequences
for his backpay award.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the AJ’s finding of discrimination, and REVERSE the
Agency’s final order rejecting it.

ORDER (C0618)
The Agency is ordered to take the following remedial action:
1. The Agency shall tender to Complainant non-pecuniary compensatory damages in the
amount of TEN THOUSAND DOLLARS AND 00 CENTS ($10,000.00). The Agency
shall tender that amount to Complainant no later than thirty calendar days after the Agency
issues or should have issued the final action within the meaning of 29 C.F.R. § 1614.110.

2. The Agency shall determine and pay the appropriate amount of back pay, with interest, and
other benefits due to 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. The Agency shall make
any such request for information no later than thirty calendar days after the Agency issues
or should have issued the final action within the meaning of 29 C.F.R. § 1614.110, and
shall tender the backpay amount to Complainant no later than thirty calendar days after
Complainant provides any needed information relevant to making a back pay determination
requested by the Agency or thirty calendar days after the Agency issues or should have

2 The AJ awarded compensatory damages as a result of the finding of sex discrimination and
reprisal under Title VII.
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issued the final action within the meaning of 29 C.F.R. § 1614.110, if the Agency makes
no such request.

3. Complainant’s request for attorneys fees is GRANTED in the amount of $70,594.00.
Complainant’s is also granted leave to submit to the agency a request for additional
attorney’s fees for pursuing this appeal.

4. Within 90 days of the date this decision is issued, the Agency shall provide 8 hours of in-
person or interactive EEO training for SME1, P2, and HR1 on Title VII and the ADEA.
The training shall emphasize the Agency’s obligations under those statutes to conduct a
selection process free of discrimination or bias.

5. Within 60 days of the date this decision is issued, the Agency shall consider taking
appropriate disciplinary action against SME1, P2, and HR1. 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.
If any of the responsible management officials have left the Agency’s employment, then
the Agency shall furnish documentation of their departure date(s).

POSTING ORDER (G0617)

The Agency is ordered to post at its Division of Insurance and Research (DIR) in Washington,
District of Columbia facility copies of the attached notice. Copies of the notice, after being signed
by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic
format by the Agency within 30 calendar days of the date this decision was issued, and shall remain
posted for 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 as directed in the paragraph entitled “Implementation of the Commission’s Decision,”
within 10 calendar days of the expiration of the posting period. The report must be in digital format,
and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

The Agency is directed to submit a report of compliance evidencing the Agency’s actions to
implement the Orders herein. The report shall be filed within ninety calendar days after the Agency
issues or should have issued the final action within the meaning of 29 C.F.R. § 1614.110, and shall
include documentation verifying that the corrective actions have been implemented.

The Agency is directed to submit a report of compliance in digital format as provided in the
statement entitled "Implementation of the Commission's Decision." The report shall be submitted
via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report
must include supporting documentation of the Agency's calculation of back pay and other benefits
due Complainant, including evidence that the corrective action has been implemented.
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ATTORNEY’S FEES (H1019)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. §1614.501(e)(1)(iii)),
she/he is entitled to an award of reasonable attorney’s fees incurred in the processing of the
complaint. 29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid by the Agency.
The attorney shall submit a verified statement of fees to the Agency -- not to the Equal
Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar
days of receipt of this decision. The Agency shall then process the claim for attorney’s fees in
accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.

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.

Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 11, 2020
Date