Tony L. Calloway, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 29, 2009
0120080458 (E.E.O.C. Sep. 29, 2009)

0120080458

09-29-2009

Tony L. Calloway, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Tony L. Calloway,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120080458

Hearing No. 120-2006-00010X

Agency No. 200406582005101165

DECISION

On November 6, 2007, complainant filed an appeal from the agency's October

15, 2007 final order concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Title VII of

the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely

and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following

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

ISSUE PRESENTED

Whether substantial evidence supports the Administrative Judge's (AJ)

finding that complainant was not subjected to reprisal or race or sex

discrimination when the agency failed to select him for a Prosthetics

Representative position on or about January 19, 2005.

BACKGROUND

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

as a GS-6 prosthetic clerk at the agency's facility in Salem, Virginia.

The record reveals that complainant has worked for the agency since 1982.

Before becoming a prosthetic clerk, complainant worked with the agency

as a nursing assistant, supply clerk/supply technician, and a purchasing

agent. Complainant previously engaged in EEO activity in 1985, 1992,

1994, and 1998.

In 1995, complainant was placed into a GS-5 Prosthetic Clerk position

in the Prosthetics Services division of the agency. As a Prosthetic

Clerk, complainant receives and processes orders, conducts inventory

reviews, purchases items, issues items to patients, and orders eyeglasses.

Complainant's Prosthetic Clerk position was upgraded to the GS-6 level in

approximately 2000. Out of eight employees in the Prosthetics Division,

complainant is the only African-American employee.

On or about November 11, 2004, the agency announced a vacancy for the

position of Prosthetic Representative, GS-672-7 (target 9). The duties

of the position include working with the Chief of Prosthetics (Chief)

in planning, developing, implementing and evaluating the prosthetic and

orthopedic programs; providing oversight and coordination of special

emphasis programs; working as a liaison with other facilities; and,

writing reports.

Both complainant and a White female GS-6 Prosthetic Clerk submitted

applications for the positions in response to agency questions regarding

their ability to manage, knowledge in prosthetics programs, ability to

analyze the National Prosthetic Patient Database, ability to establish

and manage a prosthetic inventory control system using software, and

ability to purchase prosthetic appliances and reconcile transactions

using software.

On his application, complainant maintained that he gained management

experience as an Acting Prosthetic Representative in the absence of

a supervisor; as Squad Leader and Acting Supply Sergeant; and, as

supervising Security Officer at a General Electric Plant. Complainant

further maintained that he was assigned to the clothing allowance program

and was very familiar with oxygen, automobile adaptive equipment,

and Home Improvement and Structural Alterations (HISA). Complainant

also maintained on his application that he was familiar with Prosthetic

inventory because he reviewed, organized, and managed inventory in his

current position. Complainant further stated that he analyzed reports

and data to see how many supplies were used each day and to ensure that

the facility had sufficient stock on hand. Complainant also maintained

that as Purchasing Agent/Prosthetic Clerk, he used prosthetic software

in order to purchase and order oxygen, eyeglasses, blind and hearing

aids, specialty items, and artificial devices. He further stated that

he received purchase card training annually.

On her application for the position, the White female candidate stated

that she gained managerial experience as an assistant retail credit

manager for seven years, retail credit manager for ten years, Healthcare

Executive Administrative Assistant for four years, Rehabilitation Mobility

Coordinator for one year, National Respiratory Company Center Manager for

two years, and Acting Chief in the Prosthetics Services in the absence

of the Chief. She further stated that she had experience with the Home

Oxygen Program, where she coordinated the setup, revision, and renewal of

prescriptions and processed monthly billing. She stated that in the NBC

Program, she was involved with writing the local policy and procedure for

the program. She further stated that in the HISA Program, she received

and reviewed applications submitted and determined the eligibility of

patients for a clinic in the Prosthetic and Orthotic Clinic. She further

stated that she had limited or no experience with the Eyeglasses, auto

adaptive, and clothing allowance programs. She further stated that she

held two government credit cards that are used to procure equipment for

patients. In response to application questions regarding her ability

to analyze and interpret the National Prosthetic Database and manage a

prosthetic inventory control system using prosthetic inventory software,

she merely explained the purpose of the National Prosthetic Database

and prosthetic inventory software.

The Chief of Prosthetics and the Associate Director of the Medical Center

(White male) convened a selection panel consisting of a Management Analyst

(White male), the Supervisory Rehabilitation Therapist (White male),

and the Home Oxygen Coordinator (African-American male). Complainant

and a White female GS-6 prosthetic clerk were deemed qualified for the

position and were interviewed by the selection panel. The panel asked

both candidates the same seven questions, and each panelist individually

scored the candidates with no discussion amongst the panelists.

The first question required candidates to rate their writing ability on

a scale of zero to 10; the second question required candidates to list

two characteristics that made them sensitive and effective leaders; the

third question required candidates to describe a difficult interpersonal

relationship they have had with a co-worker; the fourth question required

candidates to describe how they established work priorities and goals

and the manner by which they measured their success in achieving these

goals; and, the fifth question required candidates to list the many

programs incorporated under the Prosthetics division. The final two

questions required candidates to explain the purpose of the National

Prosthetics Patient Database (NPPD) and to compare the position they

were applying for with their own knowledge and skills. Each panelist

rated the candidates' responses to each question on a zero to five point

scale and tallied the candidates' total score for all the questions.

One panelist (Supervisory Rehabilitation Therapist) gave complainant a

score of 24 and complainant's co-worker a score of 33; another panelist

(Management Analyst) gave complainant a score of 23 and his co-worker a

score of 26; and, the third panelist (Oxygen Coordinator) gave complainant

and the co-worker a score of 31. Complainant had an aggregate score

of 78, and his co-worker had an aggregate score of 891 (out of 120

possible aggregate points). The panelists' scores for complainant and

the co-worker were forwarded to the selecting official, who selected

complainant's co-worker to be promoted to the GS-7 Prosthetic Clerk

position effective January 23, 2005.

On March 8, 2005, complainant filed an EEO complaint alleging that he

was discriminated against on the bases of race (African-American), sex

(male), disability,2 and in reprisal for prior protected EEO activity

under Title VII when on January 19, 2005, the agency failed to select

him for the position of Prosthetic Representative, GS-672-7, announcement

number 04-219.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing, and the AJ held a hearing on July 19, 2006.

At the hearing, complainant testified that as a prosthetics clerk, he has

worked on the inventory clothing allowance, orthotics, eyeglass, oxygen,

audiology, medic equipment., home alteration structure improvement,

and automotive adoptive programs. Additionally, he testified that he

did budgeting, reports, and inventory. Complainant further testified

that he previously applied for a Prosthetics Representative position in

1998 or 1999, 2001, and 2003 but was not selected.

Complainant testified that when the Chief of Prosthetics informed

him who would be on the selection panel before he was interviewed, he

informed the Chief that he felt uncomfortable with the panel because

he had "past issues" with the panelists. Hearing Transcript, p. 26.

Complainant further testified that the selectee worked primarily on

the oxygen program and did not work on the eyeglasses, automotive, and

clothing programs. Complainant stated that he has trained everyone in

the Prosthetics division, including the selectee, who came to him to

learn how to input inventory items. Complainant testified that he has

been on selecting panels with the Chief, and out of three selections made

by the Chief since he assumed his position in 2004, no African-Americans

were selected.

The Supervisory Rehabilitation Therapist testified that he was the EEO

counselor who processed complainant's 1992 complaint. He stated that

the Chief asked him to be on the selection panel for the Prosthetic

Representative position. He testified that the panelists were asked

to score the two candidates' interview responses on a one to five point

scale and write their individual scores and comments for the candidates

on a sheet. He stated that the panelists did not discuss their scores

with each other before submitting them to the selecting official. The

Supervisory Rehabilitation Therapist stated that he rated the selectee

higher than complainant on some questions. When asked to give an

example to support his scoring, he stated that he rated complainant

lower than the selectee on the first question because complainant stated

that he never received negative feedback regarding his writing skills,

whereas the selectee gave a positive assessment of her writing skills by

stating that she has written policy documents, congressional responses,

and contracts.

The Management Analyst testified that he was aware of complainant's

EEO activity in 1992 and 1994 because he was complainant's third-line

supervisor at the time but not the responsible management official

named in the prior complaints. He stated that the Chief asked him to

chair the interview committee. He stated that he gave the selectee

a higher score than complainant because the prosthetic representative

position is a leadership position, and the selectee had more experience

than complainant in organizing, writing policies, and in management.

He stated that the selectee has written various prosthetics policies and

was a business manager for a private firm. He further testified that

the selectee for the position needed to have a full range of knowledge

of all the programs in the Prosthetics division.

The Oxygen Coordinator testified that at the time he served as selection

panelist, he did not have any knowledge of complainant's prior EEO

complaints. The Oxygen Coordinator stated that he gave both candidates

the same score because complainant had 25 years of experience. "To me,

if you've got 25 years in a job, how can you not -- I don't know what

you have to do or not to be able to do to do another step. You know,

you deserve the other step," he stated. Hearing Transcript, p. 166.

The Chief testified that he was aware of complainant's previous EEO

activity in the late 1990's because he provided favorable testimony

for complainant in his effort to get his position upgraded to GS-6.

He stated that the interview questions for the position were acquired

from agency headquarters' website and given to the Management Analyst.

He stated that after the interviews, the Management Analyst provided

him with the tally sheets of candidate scores from the interviews.

He stated that he chose the selectee for the position based on the

selection panel's scores. He further testified that he knew the selectee

very well, and the selectee assisted him with congressional responses,

written responses to issue briefs, and the Veterans Integrated Service

Network (VISN) contract for home oxygen shields. The Chief stated that

although he has interviewed African-Americans for positions, he has

never selected an African-American candidate.

The Chief also testified that complainant is the only African-American

amongst an otherwise all-white office, and complainant is the only

African-American employee he has supervised since he became a supervisor

in 2003. The Chief testified that the prosthetics representative

position is a "trainee position" wherein the representative is trained

for approximately one year to assume full duties and responsibilities.

Hearing Transcript, p. 192. The Chief further stated that the position

is not a leadership position. Id.

The Chief further testified that although he stated that he checked

references for a candidate on the certification of references for the

position, he did not check the references. He further testified that

although he certified that he reviewed the agency's diversity plan

and discussed it with the EEO manager, he did not actually do these

things either. The Chief further testified that the selectee reviewed

the Knowledge, Skills, and Abilities (KSA) questions and other selection

documents before the position was announced.

The Chief also testified that he told complainant and others that an

African-American left him to die in the Vietnam War, but he has never

stated that he is prejudiced against African-Americans.

The record contains a copy of promotion announcement for the GS-672-7

(target GS-672-9) Prosthetics Representative position. The announcement

states that the incumbent in the position serves as a prosthetic

program specialist with responsibility for working with the Chief

of the Prosthetic and Sensory Aids Service in planning, developing,

implementing, and evaluating the prosthetic and orthotic programs at

the Medical Center. The announcement further states that the position

involves providing oversight to and coordinating special emphasis

programs; ensuring effective integration of services; serving as a

liaison between the Salem Medical Center and other Medical Centers;

performing assignments to develop or adjust programs; interpreting

and applying laws, regulations, and procedures; maintaining medical

and administrative records and data; and, aiding the Service Chief in

reviewing and appraising the effectiveness of each phase of the prosthetic

program in accordance with agency policies.

The record also contains a position description for the Prosthetic

Representative position. The description states that the position

involves performing annual clothing allowance evaluations; processing

automobile adaptive equipment applications; making patient home visits;

communicating with Congressmen, veteran service organizations, and

veterans; and, participating in surveys to assure overall quality

assurance of service activity. The position description also states

that the incumbent must apply thorough knowledge of agency administrative

policies, regulations, contracting procedures, and laws that govern the

prosthetic program; operate independently in planning and coordinating

program activities; apply agency prosthetic policies and directives; apply

technical expertise to diverse and complex technical and administrative

problems; develop new approaches and methods and resolve problems; and,

gain rapport with individuals or groups to attain the desired outcome.

THE AJ's DECISION

In a decision dated September 28, 2007, the AJ determined that complainant

did not prove that he was subjected to unlawful discrimination because

he did not establish a prima facie case of reprisal and failed to prove

that the agency's legitimate, non-discriminatory reasons for its actions

were pretextual. The agency fully implemented the AJ's findings in a

final order dated October 15, 2007.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the AJ improperly found no

discrimination. Complainant maintains that the agency's explanations are

pretextual because the selectee is a friend of the selecting official;

the selectee only worked in the Oxygen Program, whereas complainant

was well-versed in all prosthetic programs; the selecting official

has stated that a black man left him to die in the Vietnam War;

the selecting official failed to consider all the rating factors in

the selection process; and, the selecting official has never hired an

African-American since he has been Chief. Complainant further contends

that the selectee reviewed the KSA's criteria for the position in November

2004, and the selecting official falsified the selection certificate

when he stated that he checked references and reviewed the agency's

diversity plan. The agency argues that we should affirm its final order

because complainant failed to prove that he was more qualified than the

selectee and did not show any causal connection between his previous

EEO activity and his non-selection.

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.

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14.

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case

of reprisal by showing that: (1) he engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

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

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

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

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000).

Reprisal

In this case, complainant engaged in EEO activity in 1985, 1992, 1994,

and 1998. Two of the three selection panelists were aware of some

of complainant's prior EEO activity because one panelist served as an

EEO counselor for complainant's 1992 complaint. Another panelist was

complainant's third-line supervisor but not the responsible management

official during complainant's 1994 complaint. The third panelist was not

aware of complainant's prior EEO activity, and the selecting official

knew about complainant's 1998 complaint because he provided testimony

favorable to complainant's EEO complaint. Finally, we note that the

last EEO activity that complainant engaged in before the instant matter

occurred approximately six years before his non-selection. We find that

complainant failed to show that a nexus exists between his previous EEO

activity and the relevant non-selection. As noted above, complainant's

prior EEO activity is too remote to establish a nexus between his prior

EEO activity and his non-selection. See Clark County School District

v. Breeden, 532 U.S. 268 (2001) (The U.S. Supreme Court ruled that in

order to establish causality in reprisal cases, the time period between

the employer's initial knowledge of the prior protected activity and the

adverse employment action must be "very close;" a three month time period

not proximate enough to establish a causal nexus); see also Battaglia

v. FDIC, EEOC Appeal No. 01985358 (July 30, 2001)(holding that a two

year period between the EEO activity and adverse action was sufficient

to establish a causal connection). Thus, we find that complainant failed

to establish a prima facie case of reprisal.

Race and Sex Discrimination

Regarding complainant's race and sex discrimination claims, the record

reveals that complainant is an African-American male who applied for

a GS-7 (target GS-9) Prosthetics Representative position. The record

further reveals that complainant was deemed qualified for the position

by the agency. Additionally, the record reveals that complainant was not

selected for the position, but a White female applicant was selected for

the position. Thus, we determine that complainant established a prima

facie case of race and sex discrimination.

We further determine that the agency articulated legitimate,

non-discriminatory reasons for not selecting complainant for the

Prosthetics Representative position. Specifically, one interview panelist

stated that he gave the selectee a higher score because she conveyed

that she had more extensive writing skills than complainant during

the interview. The second panelist stated that he gave the selectee

a higher score than complainant because the prosthetic representative

position is a leadership position, and the selectee had more experience

than complainant in organizing, writing policies, and in management.

In hearing testimony, the selecting official testified that he chose the

selectee based upon the panelists' scoring and noted that the selectee

had assisted him with congressional responses and a contract for home

oxygen shields.

Nevertheless, we find that a panelist's assertion that he chose

the selectee because of her management skills is contradicted by the

evidence. In so finding, we note that the vacancy announcement and

position description for the Prosthetics Representative position do

not indicate that the position is a supervisory or management position.

In fact, the Chief testified that the Prosthetics Representative position

is not a leadership position and is a "trainee position" wherein the

representative is trained for approximately one year to assume the full

duties and responsibilities of the position. Hence, we find that this

panelist's explanation for complainant's non-selection is unworthy of

belief.

Another panelist claimed that he rated complainant lower than the selectee

because complainant gave inferior answers about his writing skills during

the interview, but interview notes indicate that complainant also had

writing experience as a point of contact for patients. We further find

scant evidence to justify the third panelist's scoring of the candidates.

For instance, at the hearing, the third panelist only explained his

scoring by maintaining that he thought complainant should be promoted

to the "other step" because of his long tenure with the agency and

acknowledging that he changed his scores for the selectee from a

lower score to a higher score after he realized that he was "probably

more impressed with what she said than I initially thought." Hearing

Transcript, p. 162. Moreover, the third panelist's interview notes only

indicate his final scores for the candidates but do not provide us with

any explanations for why he gave the candidates particular scores.

Further, we find that complainant possessed plainly superior

qualifications for the Prosthetics Representative position than

the selectee. See Wasser v. Department of Labor, EEOC Request

No. 05940058 (November 2, 1995); Bauer v. Bailor, 647 F.2d 1037, 1048

(10th Cir. 1981). At the time of the non-selection, complainant had

worked in the Prosthetics division for approximately ten years of his

22 years with agency; worked in inventory clothing allowance, orthotics,

eyeglass, oxygen, audiology, medic equipment, home alteration structure

improvement, and automotive adaptive programs; served as an Acting

Prosthetic Representative, Squad Leader, and Acting Supply Sergeant;

analyzed reports to determine the agency's supply needs; managed

prosthetic inventory control; and, ordered inventory stock. Furthermore,

complainant provided Prosthetic training to other employees, including

the selectee, who came to him to learn how to input inventory items.

In contrast, the selectee only had approximately seven years of

experience at the agency and in Prosthetics and indicated that she

only significantly worked on the home oxygen, home alteration structure

improvement, orthotics, and NBC programs. Complainant clearly not only

had significantly more experience working in the Prosthetics division,

but also worked on a greater range of programs within the Prosthetics

division. We further note that in contrast to complainant, the selectee

provided non-responsive answers to two of the seven questions on her

KSA application. Specifically, instead of answering KSA questions

regarding her qualifications to use the National Prosthetic Patient

Database and the prosthetic inventory control system, the selectee merely

defined what these systems were without explaining her ability to use

the systems. While one selection panelist contends that the selectee's

prior management experience in the private sector made her a superior

choice for the position, we find no support for this claim in light of

the fact that the position description and vacancy announcement do not

indicate that supervisory skills are pertinent to the position.

Moreover, we find that the selectee had a suspiciously unfair advantage

in the selection process. The record reflects that the selectee previewed

the KSAs for the position and signed the recruitment checklist before

the vacancy announcement was issued while she was the Acting Chief.

Complainant did not have the opportunity to preview the KSAs and

other selection materials before the vacancy announcement was issued.

Ostensibly, the agency seeks to portray the selectee's advantage as

coincidental because of the untimely absence of the Chief/selecting

official. However, we are persuaded that the selectee was given the

opportunity to unfairly preview the KSAs and selection materials.

Furthermore, we note that the selecting official acknowledged that he

falsified selection documents that indicated that he contacted references

for a candidate, reviewed the agency's diversity plan, and discussed

the plan with the EEO manager. We find that this admission greatly

undermines the credibility of the agency's explanations and casts doubt

over the entire selection process.

Therefore, given the totality of the circumstances, we find that the

agency's explanations are unworthy of belief,3 and that the AJ's finding

of no sex or race discrimination is not supported by substantial evidence

in the record. These circumstances are, among other things: the Chief

testifying that he did not tell the truth when he indicated that he

checked references for a candidate and when he claimed that he reviewed

the agency's diversity plan and discussed it with the EEO manager; the

selectee being allowed to review the KSA questions and other selection

documents before the position was announced; the Chief's role in selecting

the interview panel and choosing the interview questions for the position;

a panelist asserting that he chose the selectee because of her management

skills when such skills are not listed on the vacancy announcement and

the Chief indicated that the position was not a leadership position,

but a trainee position; the Chief's statement to complainant and other

employees that he was left to die in Vietnam by an African-American

man; the fact that he has never selected an African-American for a

position, although he has interviewed African-Americans for positions;

and complainant's plainly superior qualifications for the position.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Court

held that a fact finder is not required, as a matter of law, to find

discrimination whenever it finds that an employer's explanation for its

actions is not credible. Id. at 519. The Court, however, made clear

that a fact finder might find discrimination in such circumstances.

Id. at 524. The critical factor is that a fact finder must be persuaded

by the complainant that it was discrimination that motivated the employer

to act as it did. Id. In this case, we believe that complainant has

met his burden. Consequently, we find that the AJ erred in finding that

complainant was not subjected to race and sex discrimination.

CONCLUSION

Accordingly, the Commission affirms the final order's finding that

complainant was not subjected to reprisal for prior protected EEO

activity. The Commission REVERSES the final order's finding that

complainant was not subjected to race or sex discrimination and REMANDS

this matter to the agency to take corrective action in accordance with

this decision and the ORDERS below.

ORDER

1. Within 60 days of this decision becoming final the agency shall offer

complainant the position of Prosthetics Representative, GS-7 (target

GS-9), retroactive to January 23, 2005, or a substantially equivalent

position at the agency's Salem, Virgina facility, or at an installation

of complainant's choice. If complainant accepts the offer, the agency

shall award him any career ladder promotions he would have received

had he been placed into the GS-7 Prosthetics Representative position on

January 23, 2005. Complainant shall be given 15 days from receipt of the

offer within which to accept or decline the offer. Failure to accept the

offer within the 15-day period shall be considered a declination of the

offer, unless complainant can show that circumstances beyond his control

prevented a response within the time limit.

2. Within 60 days of the date this decision becomes final, the agency

shall determine the appropriate amount of back pay, with interest, and

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

agency shall determine the appropriate amount of back pay based upon

the difference in salary between complainant's current position and the

salary he would have earned in the Prosthetics Representative position

from January 23, 2005 until the date complainant either assumes the

Prosthetics Representative position or declines it, with interest and

other benefits. Complainant shall cooperate in the agency's efforts

to compute the amount of back pay and benefits due, and shall provide

relevant information requested by the agency. If there is a dispute

regarding the exact amount of backpay and/or benefits, the agency

shall issue a check to complainant for the undisputed amount within

60 days of the date the agency determines the amount it believes to be

due. Complainant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer, at the address referenced in the

statement entitled "Implementation of the Commission's Decision."

3. Within 180 days of the date this decision becomes final, the agency

shall provide eight hours of EEO training to the responsible agency

officials regarding their obligations under Title VII. If any of the

responsible agency officials are no longer employees of the agency,

then the agency shall furnish documentation establishing their departure.

4. Within 180 days of the date this decision becomes final, the

agency shall consider taking appropriate disciplinary action against

the responsible agency officials, including the interview panelists

and selecting official. The agency shall report its decision to the

Compliance Officer, referenced herein. 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

agency officials have left the agency's employment, then the agency

shall furnish documentation of their departure date(s).

5. If complainant accepts the Prosthetics Representative position, the

selecting official (Chief) and the interview panelists involved in this

matter shall not be in complainant's supervisory chain of command.

6. The agency shall undertake a supplemental investigation to determine

complainant's entitlement to compensatory damages under Title VII. The

agency shall give complainant notice of his right to submit objective

evidence (pursuant to the guidance given in Carle v. Department of the

Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective

evidence from complainant in support of his request for compensatory

damages within 45 days of the date complainant receives the agency's

notice. No later than 90 days after the date that this decision becomes

final, the agency shall issue a final decision addressing the issue of

compensatory damages. The final decision shall contain appeal rights to

the Commission. The agency shall submit a copy of the final decision to

the Compliance Officer at the address set forth herein.

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

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

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to conspicuously post at its Salem, 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 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 (K0408)

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 (M1208)

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

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

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

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

policies, practices, or operations of the agency.

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

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

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

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

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

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

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

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

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

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

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

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

proof of service on the other party.

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

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

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

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1008)

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

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

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

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

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

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

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

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

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

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

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

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

______9/29/09____________

Date

1 We note that the testimony of the selecting officials and individual

tally sheets indicate that the co-worker should have received an aggregate

score of 90, although documentation reflects that she was accredited

with an aggregate score of 89.

2 We note that complainant withdrew his claim that he was subjected to

disability discrimination at the hearing.

3 We note that the AJ's decision does not reflect that she made

credibility determinations regarding witnesses.

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0120080458

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080458