07a20134
12-01-2003
Samuel Ko, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Samuel Ko v. Department of Homeland Security
07A20134
December 1, 2003
.
Samuel Ko,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07A20134
Agency No. 00-3172
Hearing No. 210-A1-6282X
DECISION
Following its August 19, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of race (Asian) when he was not selected
to the position of Supervisory Customs Inspector, GS-12, in December
2000.<1> By implication, the agency also requests that the Commission
affirm its rejection of the AJ's order to take corrective action to
remedy the discrimination. For the following reasons, the Commission
reverses the agency's final order.
On February 6, 2001, complainant, a Customs Service Inspector, GS-11,
requested that the agency amend an existing formal EEO complaint to
add, in relevant part, the issue that is the subject of this decision.
The agency honored complainant's request on May 18, 2000, and accepted
the issue for investigation. Upon completion of the investigation,
complainant was provided a copy of the investigative report and requested
a hearing before an AJ.
Following a hearing, the AJ found that complainant established a prima
facie case of racial discrimination because the record showed that
complainant was a member of a protected group, applied and was qualified
for the position at issue, and was not selected in favor of a Caucasian
applicant. The AJ further found that the agency articulated a legitimate,
nondiscriminatory reason for its action by stating that complainant
was not selected because the responsible management official (RMO) was
�stressed for time in filling the [position] because the [facility] had
been without adequate personnel for some time and selecting someone off
the best qualified list would have been a slower process� than selecting
someone from in-house.
The AJ concluded that complainant established that more likely than
not, the reasons provided by the agency were a pretext for racial
discrimination. The AJ listed five reasons, the first three of which
raised a reasonable inference that �time was not of the essence� as the
agency claimed, for reaching this conclusion. First the AJ reasoned
that despite the alleged dire need for additional personnel at the
relevant facility, the RMO never considered requesting assistance from
a different field office, something that is rather common within the
agency. Next the AJ reasoned that notwithstanding the RMO's belief that
the process of filling vacancies took a fairly lengthy period of time,
he chose the slowest method of filling the vacancy at issue, namely,
he requested a nationwide vacancy announcement to be issued without
geographic limitations. The AJ noted that the RMO did not initially
consider the alternative staffing method of filling vacancies, which
merely entailed the Port Director submitting a candidate's name for a
particular position. The AJ found not credible the RMO's contention
that he did not know about the alternative staffing method because
he made that contention after being asked a leading question by the
agency's representative.
The AJ's third reason for finding that the agency's stated reason was a
pretext for discrimination is the fact that the RMO gave inconsistent
testimony. At times, the RMO stated that his decision to choose a
candidate that was not on the best qualified list was made on his
own without guidance from personnel. At other times, he stated he
was ignorant about the selections process because this was his first
vacancy announcement. When asked to clarify the inconsistency, the RMO
stated that he would have asked personnel for guidance. The AJ went
on to reason that if time was of the essence in filling this particular
vacancy and the RMO sought guidance from personnel, then personnel would
have informed him of the alternative staffing method.
Fourthly, the AJ stated that the agency's stated reason was not believable
because, during the hearing, the RMO stated that it was important to
hire a person within the local office for the purpose of boosting morale,
particularly in a small office where advancement opportunities were rare.
He then ruled that this new reason was contrary to the first reason,
i.e., that the position had to be filled quickly. This is so according
to the AJ because after the RMO proffered this new or second reason for
complainant's non-selection, the agency adopted a �preselection is not
discrimination� argument. While recognizing that preselection does not
necessarily equate to discrimination, the AJ found the agency's argument
for nondiscriminatory preselection not credible because if the selectee
was preselected, then timing would not have mattered as the vacancy
would essentially have already been filled.
The AJ's final reason for ruling that the agency's stated reason
was a pretext for discrimination hinged upon the RMO's credibility.
In addition to the credibility issue raised above, the AJ noted that
the RMO testified during the hearing that he had been the selectee's
immediate supervisor for approximately five months when he recommended
the selectee for the vacant position, but documents in the file indicated
he had falsely represented to upper agency management he had supervised
the selectee for a year or more. The AJ further noted that when asked
about the selectee's overall performance over the previous two years,
the RMO stated that his performance was �exceptional.� The AJ ruled,
without elaboration, that this representation was also false.
After issuing his finding of discrimination in a bench decision on
June 11, 2002, the AJ, in a separate decision, ordered the agency to
take remedial steps to put complainant in the position he would have
been absent the discrimination. Those steps included, inter alia,
retroactively promoting complainant to the position of Supervisory Customs
Inspector, GS-12, back pay plus interest, $5,000.00 in compensatory
damages, and $16,337.50 in attorney's fees.
The agency's final order rejected the AJ's finding of discrimination,
and by implication, the AJ's order to take corrective action to remedy
the discrimination. We note that 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).
On appeal, the agency argues that the AJ erred in finding that
complainant's non-selection was discriminatory because there was no
evidence in the record which indicated complainant was clearly better
qualified than the selectee. The agency based this argument on what
it describes as legal precedent which states that where an employer's
proffered nondiscriminatory reason in non-selection cases is that the
best qualified person was chosen, competing qualifications cannot
be evidence of pretext unless the differences are so favorable to
the charging party. Such legal precedent, however, is relevant when
competing qualifications are the only factor by which the fact finder
determined that the non-selection was discriminatory. In this case,
the AJ, by the agency's own admission, never suggested that complainant
was clearly more qualified than the selectee. Instead, the AJ used other
factors to determine that complainant's non-selection was discriminatory.
It is well-established that factors other than comparing qualifications
can be used to find discrimination in non-selection cases. Hence,
the first argument put forth by the agency lacks relevance.
Next, the agency argues that the AJ's finding regarding the RMO's
credibility was groundless. Specifically, the agency notes that the AJ's
determination that the RMO had improperly represented to upper management
that he had supervised the selectee for a year or more is inaccurate.
The agency argues that the reference check form completed by the RMO
when he recommended the selectee for the position, which provided the
basis of the AJ's determination, asked, �In what capacity do/did you
know the candidate?� The RMO indicated that he knew the candidate in a
supervisory capacity. Next, the reference check form asked, �How long
have you known/did you know the candidate?� The RMO indicated that he
had known the candidate for a year a more. According to the agency,
both statements are true because the RMO was the selectee's supervisor
at the time he completed the reference form and he had in fact known the
selectee for more than a year at that point. The agency notes that it is
unclear what evidence of record the AJ used to conclude that the RMO's
representation that the selectee's performance over the past two years
was false. In these regards, the agency's arguments are compelling.
We therefore find that the AJ's credibility findings concerning these
two instances are not supported by the record.
However, the AJ's conclusion that the RMO's credibility was suspect
was based on more than those two instances. As stated earlier, the AJ
noted that the RMO's second reason that the selectee was hired because
he wanted to select someone within the local office was inconsistent with
his first reason, that the position had to be filled quickly. The agency
argues that there is no inconsistency because once the RMO learned of
the alternative staffing method (ASM) process and saw the selectee's
name on the ASM list, he chose the selectee because, at that point,
it was the fastest way to fill the vacancy. This argument, however,
does not address the AJ's concern that this second reason put forth
by the selecting official was inconsistent with the first. The AJ's
questioning of the RMO's credibility also stemmed from the fact that
he �flip-flopped� when he stated that he did not receive guidance from
personnel but then later stated that he would have asked personnel for
guidance. According to the agency, the latter part does not constitute a
�flip-flop� but rather a supposition, and therefore is not strong enough
to cast doubt on the selecting official's credibility. We disagree.
After arguing that the RMO said nothing to damage his credibility, the
agency argues that the remaining sources relied upon by the AJ to question
the RMO's credibility (i.e., his demeanor and manner of testifying)
are not adequate bases upon which to establish pretext. This argument
is without merit as we have already concluded that the record supports
the AJ's ultimate finding that the RMO had some credibility issues,
and therefore his demeanor and manner of testifying were not the sole
bases relied upon the AJ to support the finding of discrimination.
The agency also argues that the AJ did not consider all of the agency's
legitimate, nondiscriminatory reasons proffered by the agency for its
actions. Specifically, the agency argues that the AJ did not consider
statements that the selectee was hired because (1) the RMO was personally
familiar with his work as a Senior Inspector and had observed his ability
to work with other staff members and show initiative; (2) the selectee was
already located in Indianapolis, Indiana, the place of the vacancy; and
(3) it would enhance morale at the port where the vacancy was located.
There is no evidence to support this argument. The reasons relied upon
by the AJ to support his finding of discrimination do address these
legitimate, nondiscriminatory reasons, particularly his credibility
findings (that is, the ones that are supported by the record) and
conclusion that facts existed that raised a reasonable inference that
time was not of the essence in filling the vacancy.
Finally, the agency argues that the RMO's use of the word �Oriental�
to describe complainant colored the AJ's view of the case such that
his credibility findings should not be given the latitude normally
accorded to administrative judges. There is evidence in the record
that the RMO used the word �Oriental� to describe complainant's race.
The AJ noted in his decision that such use of that word was �troubling�
because using the term �Oriental� to refer to an Asian person's race
(as opposed to an inanimate object such as a rug) is offensive to
Asians. We feel compelled to state that the AJ's decision to comment
on the unpleasant nature of the word �Oriental� when used to describe
an Asian person was an appropriate use of his authority, and in no way
indicates he was somehow biased when rendering his findings.
We now turn our attention to the issue of attorney's fees and compensatory
damages. After rendering his finding of discrimination, the AJ ordered
the agency to take certain actions to put complainant in the position
in which he would have been absent the discrimination. Pertinently,
the AJ ordered the agency to pay complainant the sum of $16,337.50
in attorney's fees and $5,000 in compensatory damages. Complainant's
attorney submitted a verified statement which indicated he spent a total
of 109.25 hours working on this case. Of those hours, 5.5 were spent
litigating the case before the AJ during the hearing and 103.75 were spent
outside of the hearing. The attorney's billing rate was $225.00 per hour
for services rendered at the hearing and $200.00 per hour for services
rendered outside of the hearing. Based on that, the attorney submitted
a request to the AJ for $21,987.50 in attorney's fees. The attorney
also claimed to have incurred $71.90 in costs. The agency did not argue
that the attorney's hourly rates were unreasonable, but did argue that
because complainant was only successful on one of the three issues he
raised, the attorney's total fees and costs should be reduced by 66%.
The AJ found that because the issue on which complainant prevailed (i.e.,
the non-selection) was the most significant issue, the number of hours
claimed by the attorney should be reduced by 50% for work done prior
to summary judgment in favor of the agency, as opposed to 66%. The AJ
then found that those hours should be further reduced by 9.75 because
the record made clear that those hours were directly associated with the
unsuccessful claims. Finally, the AJ found that complainant's attorney
was not entitled to cover costs because he failed to prove how those
cost were directly related to services rendered in the successful claim.
Upon review, we find that the AJ's award is supported by the record.
As noted above, the AJ also found that complainant was entitled to an
award of $5,000.00 in compensatory damages. In so doing, the AJ correctly
noted that there was no evidence in the record to support an award
for pecuniary compensatory damages. Complainant testified, in relevant
part, that he was disappointed and discouraged by the non-selection.
Based on this testimony, the AJ found that complainant was entitled to
$5,000.00 in non-pecuniary compensatory damages. It is the Commission's
view that the award of $5,000.00 is justified. In comparable cases, we
have awarded like amounts. See Damiano v. United States Postal Service,
EEOC Request No. 05980311 (February 28, 1999) (awarding complainant
$5,000.00 in non-pecuniary compensatory damages based on statements from
complainant and co-workers that the discriminatory event left complainant
hurt, angry, and depressed); Leperi v. Department of Agriculture, EEOC
Appeal No. 01964107 (April 2, 1998) (awarding complainant $5,000.00
in non-pecuniary compensatory damages based upon statements from
complainant and family members that the agency's actions resulted in
emotional distress).
For the reasons discussed above, we discern no basis to disturb the AJ's
finding of discrimination with regard to complainant's non-selection
claim and award of back pay, compensatory damages, and attorney's fees.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER
(1) The agency shall retroactively promote complainant to the position of
Supervisory Customs Inspector, GS-12, or a substantially equal position,
effective December 2000. Complainant shall be provided full seniority and
appropriate pay adjustments for any step increases he would have received
from December 2000 to date, back pay, interest, and all other benefits
pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the
agency's efforts to compute the amount of back pay owed and shall provide
all relevant information requested by the agency. If there is a dispute
regarding the exact amounts owed by the agency, the agency shall issue
a check to the complainant for the undisputed amount within thirty (30)
calendar days of the date the agency determines the amount it believes
to be due. Complainant may petition for enforcement or clarification of
the amounts 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."
(2) The agency shall pay complainant the sum of $5,000.00 in compensatory
damages.
(3) The agency is directed to conduct EEO training for the person
identified as the responsible management official. This training
shall address management responsibilities with respect to eliminating
discrimination in the federal workplace and all other supervisory and
managerial responsibilities under equal employment law.
(4) The agency shall consider taking disciplinary action against the
management official identified as being responsible for the discrimination
against complainant. 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.
(5) The agency shall pay complainant the amount of $16,337.50 in
attorney's fees.
(6) All of the above actions shall be completed within sixty (60)
calendar days of the date this decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its Indianapolis, Indiana 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.
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 (S0900)
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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 1, 2003
__________________
Date
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
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., has occurred at 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. The Department of Homeland Security confirms its commitment
to comply with these statutory provisions.
The Department of Homeland Security supports and will comply with such
Federal law and will not take action against individuals because they have
exercised their rights under law. The Department of Homeland Security
has been found to have discriminated on the basis of national origin when
an employee was denied a promotion. The Department of Homeland Security
has been ordered to take corrective action in the form of, inter alia,
paying back pay, compensatory damages, and attorney's fees; and training
the responsible management official in the area of discrimination under
Title VII.
The Department of Homeland Security will ensure that officials responsible
for personnel decisions and the 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.
The Department of Homeland Security 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
1Neither party appealed the AJ's decision without a hearing which found
that the agency did not discriminate against complainant on the basis
of national origin when he was allegedly subjected to a hostile work
environment and issued a written reprimand. Further, neither party
appealed the AJ's decision after a hearing that the agency did not
discriminate against complainant on the basis of reprisal regarding the
non-selection at issue herein. Hence, those issues are not before us.