07a30043
10-28-2004
Preston T. White, Kirk D. Harman, Complainants, v. Elaine Chao, Secretary, Department of Labor, Agency.
Kirk D. Harman and Preston T. White v. Department of Labor
07A30044 and 07A30043
October 28, 2004
.
Preston T. White,
Kirk D. Harman,
Complainants,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal Nos. 07A30043, 07A30044
Agency Nos. 00-03-067, 00-03-062
Hearing Nos. 170-A1-8043X, 170-A1-8044X
DECISION
Following its November 27, 2002 final order, the agency timely filed
the above referenced appeals which the Commission accepts pursuant to 29
C.F.R. � 1614.405. We have consolidated these appeals in light of the
EEOC Administrative Judge's (AJ's) consolidated hearing and decision in
these matters.
On appeal, the agency requests that the Commission affirm its rejection
of the AJ's finding that it discriminated against Kirk D. Harman (C1)
on the bases of his sex and age, and Preston T. White (C2) on the basis
of his sex, when they were not selected for the position in question.
The agency also requests that the Commission affirm its rejection of
the AJ's order directing that both complainants receive retroactive
full relief. For the following reasons, the Commission VACATES the
agency's final order and REMANDS this matter for further processing on
the issue of relief.
BACKGROUND
During the relevant period, complainants were GS-12 Mine Safety Training
Specialists employed at the agency's facility in Beckley, West Virginia.
C1 filed a formal EEO complaint on February 6, 2000, alleging that
the agency discriminated against him on the bases of sex (male) and age
(D.O.B. 6/29/37) when he was not selected for the position of Mine Safety
and Health Specialist, GS-1882-13. C2 filed a formal EEO complaint on
February 7, 2000, alleging that the agency discriminated against him on
the basis of sex (male) when he was not selected for the same position.
At the conclusion of the investigation, complainants were provided
copies of the investigative report and requested hearings before an AJ.
C1's and C2's complaints were consolidated by the AJ for the hearing.
Following a hearing, the AJ found that both complainants had established
prima facie cases of sex discrimination when they were not selected
for the GS-13 position in that they were qualified for the position
and not selected in favor of a female. The AJ also found that C1
had established a prima facie case of age discrimination because the
selectee was seven years younger than he. The AJ further found that the
agency articulated legitimate, nondiscriminatory reasons for its action,
namely that the selectee scored the highest among the candidates during
the panel interview because her responses were more focused and showed
forward thinking and analytical ability in regard to the mining industry.
Finally, the AJ concluded that complainants had established that, more
likely than not, the agency's reasons for choosing the selectee were
a pretext for unlawful discrimination.
Much of the AJ's pretext analysis was focused on dissecting the
agency's reasons for concluding that the selectee performed better
than complainants during the interview process. The AJ also stated
his belief that the complainants' qualifications were far superior to
those of the selectee and, based upon their applications alone, they were
more qualified for the position than the selectee. The AJ further noted
that the supervisory experience cited by the agency to show selectee's
supervisory skills involved supervising a team that put together a
brochure and some supervisory experience over clerical employees.
In contrast, the AJ found that C1 had been a Training Specialist at
GS-12 or higher level, for over 21 years with two years of supervisory
experience over training personnel at the GS-12 or higher level.
As regards C2, the AJ found that he had supervisory experience that
was directly related to the position (including the supervision of
Training Specialists) and he had been a GS-12 Training Specialist for
over 16 years. The record reflects that the selectee had been a GS-12
for approximately a year and a half.
The AJ ultimately concluded that C1 and C2 had been discriminated against
because of their sex and that C1 had also been discriminated against
because of his age. He therefore ordered the agency to retroactively
promote C1 and C2 to a GS-13 Mine Safety and Health Specialist position or
a comparable position with back pay and benefits, and pay compensatory
damages. The AJ awarded attorney's fees to both complainants, who
were represented by the same attorney, in the amount of $57,094.05
and costs in the amount of $6,637.88 for a total amount of $63,731.93.
The agency's final order rejected the AJ's decision.
On appeal, the agency argues that the AJ erred in finding that the
complainants were more qualified than the selectee. The agency contends
that greater experience does not by itself make a candidate more qualified
for a position. The agency further asserts that the AJ erred, as a
matter of law, in concluding that the agency gave pretextual answers
for preferring the selectee's responses to those of the complainants
because the AJ failed to recognize that subjectively-determined traits are
important to positions requiring supervisory responsibilities. Further,
the agency contends that the AJ's order awarding full relief to both
complainants was erroneous and should be vacated because it provides the
complainants with more than "make whole" relief. The agency argues that,
assuming discrimination occurred, only one of the complainants would be
entitled to promotion, back pay, compensatory damages and attorney's fees.
Complainants argue that the AJ's decision is supported by substantial
evidence and that the ordered relief was appropriate. C1 states that
he has retired from the agency and no longer seeks the Mine Safety and
Health Specialist, GS-1882-13, position. He contends that he is entitled
to back pay from the date of non-selection and an appropriate adjustment
to his retirement annuity.
ANALYSIS and FINDINGS
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.
A claim of disparate treatment based on sex or age should be examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the agency has articulated such a reason, the
question becomes whether the proffered explanation was the true reason for
the agency's action, or merely a pretext for discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of
production may shift, the burden of persuasion, by a preponderance of the
evidence, remains at all times on complainant. Burdine, 450 U.S. at 256.
Although there may be reason to question the AJ's reasoning in this
regard, we nonetheless affirm his finding that complainants established
a prima facie case of discrimination in this matter. In reaching this
conclusion, we note that the record supports a finding that complainants
had many more years of relevant experience than the selectee. The record
also supports the AJ's finding that the agency articulated legitimate
nondiscriminatory reasons for not selecting complainants.
On the question of pretext, we are initially compelled to note that the
AJ erred, as a matter of law, in expressing, and relying on, his opinion
that the quantity and/or quality of the applicants' relevant experience
(as assessed by him), rather than their performance in the interview,
should have governed the agency's selection decision.<1> See e.g. AJ
Dec. at 18 (�It is clear that ...[the selectee] had no experience
related to Metal/NonMetal mines,,,,�; Dec. at 23 (finding that C2's
experience was �purposely downplayed�); and Dec. at 26 (�[T]he panel
clearly did not consider the fact that [C1] possessed more supervisory
experience than the selectee.�). The agency was not required to base
its decision on the length and nature of the candidates' experience
when all of the candidates considered had been previously certified as
highly qualified for the position. Moreover, the AJ's finding that the
interview panel did not �consider� complainants' work experience (Dec. at
26) is not supported by substantial evidence. Indeed, this finding is
contradicted by other findings in the AJ's decision. See e.g. Dec. at 21
(one interviewer recorded in his interview notes that C2 had �worked in
training for 22 years� and C1 �had almost 30 years in ... job training')
and Dec. at 24 (another interviewer recorded that C2 had �developed nine
specific courses.�)
We also have concerns with regard to the AJ's reliance on Bauer v. Bailar
, 647 F.2d 1037, 1048 (10th Cir. 1981). He cited Bauer in support of a
�pretext� finding that is based on (what he believed to be) complainants'
�observably superior� qualfications. However, the Tenth Circuit's
reasoning in that case is hardly supportive of the reasoning the AJ
used to find liability here. The plaintiff, in Bauer, did not prevail
on her promotion claim despite evidence suggesting the possibility
that the defendant had historically discriminated against plaintiff's
group. 647 F. 2d at 1043. By contrast, in this case, the complainants
did prevail on their promotion claims, despite the suggestion that the
agency may have historically favored complainants' group (i.e. males).<2>
Bauer further undermines the AJ's analysis here because the court there
recognized that an employer's use of �subjective� selection criteria
is only legally significant when it is accompanied by evidence showing
its harmful impact on a protected group. Id. While the instant
selection was based on subjective criteria, there is no evidence in the
record to suggest that such criteria had been used to the systematic
detriment of individuals in complainants' group.
Notwithstanding the foregoing concerns, and the fact that this record
presents a close question, we nonetheless sustain the finding of liability
in these matters. Since many of the AJ's �pretext� findings were based
on his assessment of the credibility of agency witnesses, we will affirm
those findings out of deference to the limited standard of review.
The agency's arguments on remedy, however, are well taken. The AJ
erred, as a matter of law, in granting full relief to both of the
complainants. In so doing, he placed at least one of them in a better
position than he would have occupied in the absence of discrimination. The
record clearly establishes that only one of the complainants could have
been denied the GS-13 Mine Safety and Health Specialist position because
of discrimination. The other had to have been denied for reasons �other
than� discrimination. The complainant in the latter category cannot
properly be awarded full relief. See 42 U.S.C. � 2000e-5(g)(2)(A). (�No
order ...shall require ...promotion of an individual...or back pay,
if such individual was ...refused...advancement ...for any reason other
than discrimination....�).
The record reflects that the AJ made no effort to determine which
of the complainants would have been selected �but for� the unlawful
discrimination. Accordingly, we vacate the award of full relief and
remand these matters to the AJ for a determination as to which of the
two complainants would have been selected for the GS-13 Mine Safety
and Health Specialist position, but for discrimination. The relief
awarded must logically flow from that determination. The AJ may make
the determination on the basis of the current record (if he deems it
sufficient) or he may take additional evidence. In the event that the
AJ is unable to determine which complainant would have been selected,
the Commission directs his attention to Dougherty v. Barry, 869 F.2d
605, 615 (D.C. Cir. 1989) and Albright v. The City of New Orleans,
208 F.Supp.2d 634, 637-638 (E.D. La. 2002) (authority for a pro rata
approach based on the theory that each complainant had less than a one
hundred percent chance of being selected).
The agency's final order rejecting the AJ's finding of liability is
hereby REVERSED and these matters are REMANDED for further processing
in accordance with the Order below.
ORDER
These matters are remanded to the Philadelphia District Office for
assignment to an Administrative Judge for further processing consistent
with this decision. The agency is directed to submit a copy of the
complaint file to the EEOC Hearings Unit within fifteen (15) calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall issue a decision on remedies
in accordance with 29 C.F.R. � 1614.109 and the agency shall issue a
final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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:
October 28, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
violations of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. have
occurred at the agency's Beckley, West Virginia facility (hereinafter
this facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have unlawfully discriminated again. The
facility was ordered to ???. This facility will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
POSTING ORDER (G0900)
The agency is ordered to post at its Beckley, West Virginia 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
1The AJ also improperly noted his disagreement with the way the agency
evaluated the complainants' and the selectee's responses to the interview
questions. See e.g. Dec. at 15 (�I find that [C2] gave a more extensive
answer...covering some of the same points identified by [the selectee]�)
(emphasis added).
2Complainants repeatedly characterized this as an �affirmative action�
case. However, the only evidence that they introduced to (arguably)
support that theory, was testimony suggesting that the position in
question had traditionally been dominated by males.