01975200
09-03-1999
Patricia M. All, Appellant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.
Patricia M. All, )
Appellant, )
) Appeal No. 01971040
) 01975200
v. ) Agency No. 96-008
)
Lt. Gen. Kenneth A. Minihan, )
Director, )
National Security Agency, )
Agency. )
)
DECISION
Appellant timely initiated appeals of two final agency decisions (FAD)
concerning her complaints of unlawful employment discrimination on
the basis age (DOB:6/25/40) in violation the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Appellant alleges she was discriminated against when: (1) she learned
she was not being considered for the Deputy Chief, M35 position; and (2)
she was not selected for the Deputy Chief, M33 position. The Commission
has reviewed the appeals together and consolidates the appeals pursuant
to 29 C.F.R. �1614.606. The Commission accepts the appeals in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is VACATED AND REMANDED.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as a Senior Personnel Officer, M35<1>, Support Services Organization,
at the agency's Fort Meade facility. In the fall of 1995, appellant
applied for, and was not selected for two positions within the Support
Services Organization. Appellant's affidavit reveals that because of
her nonselection for the aforementioned positions, she believed that
there were no other career opportunities for her within the agency,
and she retired effective December 1995. Believing she was the victim
of age discrimination, she filed the instant complaint. Following the
agency's investigation, appellant failed to request a hearing, and the
agency subsequently issued two FADs.
Allegation 1 (Deputy Chief, M35 position)
With respect to the M35 position, appellant alleged that she became
aware of an impending vacancy of the Deputy Chief, M35 position in the
fall of 1995. At that time, she told the Division Chief, M35 that she
was interested in the position, as she had previously acted in the Deputy
position for one and a half years. She alleged that soon after she spoke
with the Division Chief, M35, he told her that although he had presented
her as his first choice to the position to the Career Management Board
(CMB), the CMB had decided not to consider her for the position.
The Division Chief, M35 testified that he presented appellant and three
other choices to the CMB, as he was requested to do by the Chief, M3.
He further testified that he was aware appellant was considering retiring
soon, and that she had in fact submitted her retirement paperwork, only
to remove it once she learned about the vacancy for the M35 position.
The Division Chief, M35 testified that although nothing was specifically
mentioned during the course of the meeting about appellant's retirement,
he believed that Board members may have had the impression that appellant
was going to retire soon. The Division Chief, M35 also testified that
he recommended appellant as his first choice, the ultimate selectee for
the position was his second choice (DOB: 2/17/49), followed by two other
individuals not selected for the position (DOB: 11/22/42 and 10/12/52).
He testified that it was clear that the selectee was the choice of the
Deputy Chief, M3, who was the Chair of the CMB, and therefore, all of the
members agreed that the selectee was the most qualified. After it became
clear to him that the CMB was rejecting his recommendation of appellant
for the position, he told appellant that she was not being considered.
Appellant's retirement followed.
According to the ROI, the CMB then refers the selection to the Chief M,
and the Deputy Director of Support Services (DDSS). Testimony in the
record reveals that the agency was looking for someone who could meet the
position's criteria in terms of leadership, innovativeness, ability and
willingness to bring about change to better service the organization's
customers. Members of the CMB testified that the selectee met these
qualifications. In addition, the selectee was noted as the preferred
candidate due to her career which involved an overseas assignment,
as well as advanced educational credentials. As such, the selectee was
referred as the number one candidate, followed by the other 2 candidates.
Appellant was not referred.
It appears from the record that after a choice had been made by the
CMB, the agency then decided to announce the position competitively.
The agency has not provided any reason for this decision, nor was it
indicated who made this decision. The Division Chief, M35 testified
he was responsible for interviewing and ranking all those who responded
to the vacancy announcement, including appellant. He testified that he
again, supported appellant's application.
Sometime thereafter, subsequent to the Division Chief, M35's retirement in
December 1995, the new Division Chief, M35 was instructed to reinterview
the candidates for the position. The new Division Chief testified he
did not think this was necessary and selected the choice of the CMB.
In sum, the new Division Chief, M35 testified that he did not rank
appellant as the number one candidate because he did not see her as a
�change agent�, and because appellant had given him the impression that
she would be retiring.
An examination of the testimony of the members of the CMB reveal the
possibility that an age bias against appellant existed. For example,
those members of the CMB who concurred with the selection decision
testified that appellant was not a �future leader.� Instead, appellant
was referred to as the type of person which the agency would not �want
in a leadership role in terms of her ability to move M3 forward with new
thoughts and ideas.� Furthermore, one member remarked that, appellant
�had been in the organization too long [so] that her thought process and
way of thinking was too narrow.� Other members stated that appellant's
way of thinking was not in line with the �Malcolm Baldridge�<2> way
of thinking. One member of the Board who stated appellant was not a
�visionary thinker� or on board with �Malcolm Baldridge� thinking also
testified that he did not �think [appellant's] ultimately unsuccessful
candidacy had anything to do with her age (other than sometime younger
people are being perceived - and perhaps rightly so - as more open
to radical change.� He added that a �new reality with different
needs/values/expectations has dawned and made the practices of the past
obsolete and irrelevant.� Most members cited the fact that the selectee
had field experience and an advanced degree as reasons for the selection.
In addition, appellant's prior supervisor testified that although she
believed appellant could have handled the Deputy Chief, M35 position,
she did not believe appellant was viewed by management as having the
right mind set towards change. She added, �it also seems that �years
of service� tends to equate to the �old way� of doing business, and
[appellant] may have been viewed as part of the �old culture.��
In its FAD, which was issued on October 17, 1996, the agency found that
it had articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, the agency found that appellant had not been chosen for the
position because of management's desire to select an �individual with
broad leadership skills, strong professional credentials and a diverse
background.� Specifically, the agency mentioned that appellant was not
the strongest candidate in terms of level of education, field assignments,
and experience outside of the Human Resources Organization. With that,
the agency found that the selectee brought to the job �both breadth
and depth of experience.� Finally, the agency found that appellant had
failed to prove that the agency's reason for its action was pretext for
discrimination, and that she was not discriminated against.
Allegation 2 (Deputy Chief, M33 Position)
Testimony from the ROI for the M33 position reveals that a competitive
vacancy announcement was advertised in September 1995. The Chief,
M33 reviewed the applications of seven individuals, and then chose the
ultimate selectee (DOB: 4/20/50) for nomination to the Human Resources
Board (HRB). The HRB then discussed the candidates, agreed with the
selection, and passed the selection on to the DS HRB and ultimately to
the Chief M, and the DDSS.
Appellant alleged that she was not selected for the position because of
age discrimination. She further alleges that the selectee, who did not
have managerial experience, did not originally apply for the position,
but that someone suggested she apply. Appellant suggested that the
selection procedures were suspect in that not all of the applicants
were interviewed for the position. She argued that the DDSS wanted to
downsize the agency, and as such, move towards a younger workforce.
In its final decision, issued on March 14, 1997, the agency found that it
had articulated a legitimate, nondiscriminatory reason for its action.
Specifically, although appellant had managerial experience which the
selectee did not have, appellant was not as qualified as the selectee.
For example, the agency found that the selectee was most qualified in
the areas of broad experience, continued training, formal education,
leadership and creativity, which were the qualifications for the
position. Furthermore, the agency cited the selectee's formal education
and field assignment as further justification for the selection.
Although the agency noted a downward trend in the age of managers in
the M3 organization, the agency found that the decision was not based on
appellant's age. In sum, the agency found that appellant had not proved
that the agency's reasons for its actions were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, appellant argues that the agency's reason for its actions are
a pretext for age discrimination. She argues, through her attorney, that
the agency has been moving towards a younger workforce by implementing
the �Malcolm Baldrige� management style. Furthermore, she presents
documentation which she argues is direct evidence of age discrimination.
In response to appellant's appeal, the agency argues that the complaint is
moot because appellant has since retired from the agency, and accordingly,
is not entitled to any relief. Furthermore, the agency argues that
appellant has failed to prove that the agency's reasons for its actions
were a pretext for discrimination. Finally, the agency makes the argument
that advertising the M35 position cured any possible harm which may have
occurred during the CMB.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portion thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are moot,
it must be ascertained (1) if it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur, and (2)
if interim relief or events have completely and irrevocably eradicated the
effects of the alleged violation. See County of Los Angeles v. Davis, 440
U.S. 62S (1979). When such circumstances exist, no relief is available
and no need for a determination of the rights of the parties is presented.
A determination of whether a case is moot often turns on the second
element of the Davis test, that is, whether interim relief or events
have completely eradicated the effects of the alleged discrimination.
In this case, the agency dismissed appellant's complaint as moot because
of her voluntary retirement.
However, we disagree with the agency's arguments that appellant's
retirement has eradicated the effects of the alleged discrimination. The
remedy sought by appellant, promotion to the GS-15 level, raises the
possibility of recovery of back pay if appellant prevails on the merits
of her complaint. Based on the foregoing, we find that appellant's
decision to retire did not render her complaint moot. Furthermore, we
note that appellant claims in her affidavit and on appeal that she was
forced to retire. Specifically, in her affidavit, she testified that
once she learned that she would not be considered for the M35 position,
she �felt that M3 management had ruined [her] career, that [she] had no
career opportunities, and that [she] had no other alternative than to
retire.� Appellant also presented testimonial evidence which reveals
that she submitted paperwork for retirement, only to withdraw such when
she learned of the vacancies. She also presented her own testimony,
as well as that of other co-workers, which alludes to the belief that
had appellant not been discriminated against, she would not have retired.
Therefore, since the record reveals that appellant would not have retired,
but for her non-selections, we find that the allegations in the instant
complaint have not been rendered moot by her retirement.
With respect to the agency's remaining arguments, after a thorough review
of the record, we find that the evidence is insufficient to allow a
determination on the merits of appellant's age discrimination allegations.
Our regulations and the EEOC Management Directive for 29 C.F.R. Part
1614 require agencies to develop a complete and impartial factual
record. See 29 C.F.R. �1614.108(b) and EEOC Management Directive for 29
C.F.R. Part 1614, EEO-MD-110, at 5-1 (October 22, 1992). Specifically,
we are unable to determine from the record whether the agency's reasons
for its actions are credible or a pretext for age discrimination.
For example, although the two ROI's contain various computer generated
�Personnel Profiles� of some of the candidates, the records do not
contain the application packages of all the individuals who applied
for each of the positions. In fact, the application of the selectee
for the M35 position is not contained in the record. As such, we are
unable to determine from the record the qualifications of the candidates,
and examine their relevant work experience, educational background and
field experience.
We further note that official job or vacancy announcements listing
the minimum educational and time in grade requirements, as well as
the specific experience required for the position, are not included in
the ROI. Furthermore, there is insufficient evidence in the ROI as to
the selection process itself, and the reasons why the M35 position was
reannounced after a selection had already been made. Finally, there is
no information in the record as to the ranking factors used in either
of the positions, or how the applicants ranked against each other.
The ROI contains a selection certificate for the M33 position only.
Furthermore, testimony revealed that appellant may not have been chosen
because she was not in line with �Malcolm Baldridge� theory of management.
As such, we are unable to determine what it consists of, and whether its
criteria is age based as appellant alleges. The agency also failed to
provide an affidavit of the DDSS.
Contained in the ROI for the M33 position, is a performance award from the
Division Chief, M35, signed off by the Chief, M3 in April, 1995. Therein,
the remarks section mentions, among other things, that appellant has
outstanding leadership skills, and notes that she proposed several ideas
which had been implemented. This mentions appellant's organizational
skills, her ability to adapt to the needs of M3 and M35 organizations, as
well as her effective problem solving skills. We note that this relevant
narrative information was not contained in the ROI pertaining to the
M35 position. Rather, only the cover sheet was submitted with the ROI.
As important records and affidavits which would buttress or rebut the
agency's stated reasons are not in the record, we VACATE the agency's
findings of no discrimination, and REMAND these matters for a supplemental
investigation in accordance with the following order, and the applicable
EEOC Regulations.
ORDER
The agency shall conduct a supplemental investigation which shall include
the following actions:
The agency shall provide an affidavit from the Deputy Director of Support
Services, responding to appellant's allegations contained in her complaint
and affidavit with respect to both positions.
The agency shall provide all documentation used in the selection process
for both the M35 and M33 positions, including, but not limited to the
following:
complete application packages for those applicants considered for the
positions. Included in the packages must be the complete applications
used to apply for the position, as well as the complete performance
evaluations and complete performance awards;
the official vacancy announcement for both the M33 and M35 positions;
documentation detailing the method by which the applicants for the
positions were ranked, as well as all materials used in the ranking
process such as factors or criteria used, and the results of the
rankings;
questions and interview notes used during the interview process; and
a description of the �Malcolm Baldridge� criteria used in the selection
process.
The agency shall provide an affidavit from the individual responsible for
the decision to advertise the M35 position. The affidavit shall state
the basis for, as well as the method by which the position was advertised.
The Appellant shall be provided the opportunity to respond to the
affidavits obtained during the supplemental investigation.
During its supplemental investigation, the agency shall keep the two
ROI's together and process the investigations of the two positions
together in accordance with 29 C.F.R. �1614.108.
The supplemental investigation must be completed within sixty
(60) calendar days of the date this decision becomes final. 29
C.F.R. �1614.108(e). The agency then shall provide appellant with a
copy of the investigative file. Thereafter, the agency shall issue a
final agency decision within sixty (60) calendar days. A copy of the
agency's notice transmitting the investigative file to the appellant
must be submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
September 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1According to the
Report of Investigation, the agency's hierarchy
is lead by the agency's Director and is organized
into five key components, once of which Support
Services. Support Services is headed by a Deputy
Director and is further divided into Offices (M),
Groups, (M3), Divisions (M35) and Branches (M351).
2The record does not explain what the �Malcolm Baldridge� management
style is, despite the agency's reliance on it during the selection.