Robert E. Johnson, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Citizenship And Immigration Services), Agency. Appeal No. 0120072888 Agency No. HS 05-CIS-000-824 DECISION On June 5, 2007, complainant filed an appeal from the agency's April 30, 2007 final decision concerning his equal employment opportunity (EEO) complaint claiming unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 decision. During the period at issue, complainant worked for the U.S. Citizenship and Immigration Services (CIS) in the Guam Sub-Office of the Honolulu District, located in Hagatna, Guam, where he held the position of Supervisory Adjudications Officer/Officer in Charge (SAO/OIC-Guam), GS-14. On May 13, 2005, complainant filed the instant EEO complaint. Therein, complainant claimed that he was discriminated against on the bases of age (67 years old) and in reprisal for prior protected EEO activity [arising under the ADEA] when, on or about April 11, 2005, he became aware that he was not selected for the position of Supervisory Adjudications Officer/Officer in Charge (SAO/OIC) in Manila, Philippines, advertised under Vacancy Announcement Number (VAN) CIS MSP II04-413.1 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). In accordance with complainant's request, the agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that complainant failed to prove that he was subjected to discrimination as alleged. The FAD found the following: The Selecting Official (SO) stated that he did not select complainant for the SAO/OIC-Manila vacancy because the District Director of the Bangkok District (RO), who was the Recommending Official, did not recommend complainant for the position. SO stated that he sought an individual who had knowledge and abilities in immigration law in general; the area of temporary and permanent workers in the United States in particular; and the issue of fraud in those areas. RO indicated that he sought a writer who had good analytical skills; was knowledgeable about "the work we do;" and would be able to represent the agency with the public and with other Federal agencies, especially the State Department. RO stated that he recommended the selectee (35 years old) for the position because the selectee had "a very strong background in immigration law" and inspired confidence that he would "represent the agency in the best light." RO stated that an additional factor in his selection decision was that the selectee had very strong references from his immediate supervisor and the Director of the District where he was employed. RO also stated that he was aware of complainant's work at the time of the selection recommendation but that he did not feel that complainant's abilities "rose to the level" he was looking for. The FAD then compared and contrasted the experience and qualifications of complainant and the selectee, and then concluded that complainant had failed to demonstrate that the agency's reasons were merely pretext for discriminatory or retaliatory animus. On appeal, complainant asserts that RO and SO were aware of the respective ages of complainant and the selectee because the SF-50 submitted with all applications contains the applicant's date of birth. Complainant notes that the Supervisory District Adjudication Officer (SDAO) told the EEO Investigator that complainant was not selected because of his "Prior EEO activity and along with legal action against the government." Complainant additionally states that when asked whether he believed complainant's age was a factor, the SDAO stated "sure" and stated "they suspected that he would retire any day." Complainant also states that RO did not recommend for selection any applicant who had attained 50 years of age. Finally, complainant explains in detail the contrast between his experience and the selectee's "total lack of experience." In response, the agency made no new arguments. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Reprisal Discrimination 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 Veterans Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she 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). In the instant case, complainant engaged in prior EEO activity. However, the responsible management officials deny having known about complainant's prior EEO activity during the relevant time period. Complainant provides numerous reasons why he believes that the management officials must have known about his EEO activity. However, we are not so persuaded because of the speculative nature of his argument. We cannot conclude therefore, that complainant has established a prima facie case of reprisal. Age Discrimination Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). When a complainant alleges that he or she has been disparately treated by the employing agency as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id. The allocation of burdens and order of presentation of proof in an ADEA case alleging disparate treatment discrimination is a three step procedure: complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant has established a prima facie case of age discrimination, because he was over age 40 when he was not selected for the position, and instead, management selected a significantly younger individual who was under age 40 at the relevant time. We turn next to the agency's burden to articulate a legitimate, non-discriminatory reason for its actions. We are cognizant that the agency's burden is not an onerous one. Nevertheless, the Commission determines that the agency has failed to set forth, with sufficient clarity, reasons for complainant's nonselection such that he has been given a full and fair opportunity to demonstrate that those reasons are pretext. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981); see Parker v. United States Postal Service, EEOC Request No. 05900110 (April 30, 1990): Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997). In the instant case, the Recommending Official (RO) explained the type of person he sought, and provided various reasons why he had chosen the selectee. For instance, RO stated that he chose the selectee because "he was an attorney, with a very strong background in immigration law." In addition, RO stated "Although he had a very short time with CIS, he got very strong recommendations and seemed like a good candidate." However, when asked whether he remembered complainant's application at all, RO stated "I can't say that I do" but noted "I want to say that I gave serious consideration to everyone who applied." RO also explained that he "wanted someone who would be a good writer, had good analytical skills, was very knowledgeable about the work we do, and would be able to represent our agency, not only with the public, but also with other agencies with whom we work . . ." However, the record contains no further clarification as to how RO believed that complainant's qualifications compared with those of the selectee, or specifically why they fell short.2 As for the Selecting Official (SO), he initially noted that RO "reviewed the qualifications of the candidates, the list of candidates, checked some references of the candidates and made some recommendations to me." SO further asserted that he made his selection based on the individuals recommended by RO (which did not include complainant). The Counselor's Report indicates that SO stated that he normally selects the recommended candidate "if there are no particular problems with the candidate." SO asserted that he "independently reviewed the packets of some of the other people who were on the list", but could "not recall" whether he reviewed complainant's packet or not. SO also noted that no interviews were conducted. Although SO listed the qualities that he was seeking (i.e. "an individual who could work independently ... an individual who had knowledge and abilities, not only in immigration law in general, but more particularly in the area of temporary workers in the US, permanent workers in the US, and some of the issues the Services is dealing with regarding fraud in those areas"), he too failed to provide any clarification as to whether he believed complainant possessed these skills and abilities, or why they did not measure up to those skills and abilities of the selectee. Although SO stated that RO told him that "he did not feel that [complainant's] abilities came up to the level he was looking for", SO explained that RO made this statement after complainant had filed his EEO complaint, when SO had contacted RO to discuss the validity of the formal complaint. An agency can choose the selectee it wishes from any properly constituted certificate. However, an agency must clearly set forth its reasons in order to afford a complainant the opportunity to demonstrate that its articulated reasons for choosing that selectee were a pretext for discrimination. We find that in this case, the agency failed to do so. Therefore, we find the lack of specificity as to why the selectee was chosen makes it impossible for complainant to prove the reasons for not selecting him were a pretext for discrimination. In fact, complainant's first-level supervisor (the District Director, GS-15, Honolulu District, against whom complainant also initially made allegations of age discrimination/harassment) stated, according to the EEO Counselor "that he also questioned the selection made for the SAO position, as the individual did not have much program direction experience. He believed that [complainant] was much more qualified than the selectee." In sum, we find that this record is completely lacking any explanation as to why complainant was not selected for the position or why he was not the best candidate. As a result, we find that the agency failed to articulate a legitimate, nondiscriminatory reason for not selecting complainant. EEOC v. Target Corp, 460 F.3d 946, 959 (7th Cir. 2006) (employer should have articulated what qualities applicant failed to meet in order to articulate a legitimate, nondiscriminatory reason such that the applicant knows what evidence to present in order to establish pretext); Patrick v. Ridge, 394 F.3d 311, 316-17 (5th Cir. 2004) (employer's statement that employee was not promoted because she was "not sufficiently suited for the job," without further explanation showing how employee failed to meet the employer's standard failed to articulate a nondiscriminatory reason with sufficient clarity to afford the employee a realistic opportunity to challenge the reason as pretext). We note that nothing in the record suggests that complainant was less likely to be trainable for the position or that the selectee was more likely to be successful at the subsequent training than complainant. The agency has therefore failed to provide an articulation of its reasons for not selecting complainant for the positions in question sufficient to overcome complainant's prima facie case of age discrimination. See Prevo v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01972832 (March 10, 2000). Therefore, based on a thorough review of the record and the contentions on appeal, we find that complainant established by a preponderance of the evidence that he was discriminated against on the basis of age when, on or about April 11, 2005, he was not offered the position at issue. Accordingly, the FAD's finding that complainant did not establish discrimination on the basis of reprisal is AFFIRMED, and the finding that complainant did not establish age discrimination, is REVERSED. This case is REMANDED to the agency to take remedial action in accordance with this decision and the ORDER below. 3 ORDER Within sixty (60) days from when this decision becomes final: 1. 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, no later than sixty (60) calendar days after the date this decision becomes final. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The 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." 2. The agency shall provide each of the individuals who were responsible for this selection with at least 8 hours of training on their responsibilities, rights and obligations under federal equal opportunity laws and regulations. The training must pay particular attention to the laws prohibiting age discrimination. 3. The agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the compliance officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s). 4. The agency shall post a notice in accordance with the paragraph below. 5. 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 of the agency's calculation of backpay and other benefits due complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its U.S. Citizenship & Immigration Services, Refugee, Asylum & International Operations, in Manila, Philippines, 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. 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 (M0408) 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 (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 December 18, 2008 __________________ Date 1 The VAN indicates that "The normal tour of duty at Manila is 3 years with the possibility of 1 year extensions at the employee's request and/or depending on the needs of the Service (3+1+1)." Report of Investigation (ROI), Exhibit 13, at 3. Complainant asserts that the position was nearly identical to that which he was performing at the time of his application, just in a different location. 2 We note that although the FAD has set forth its own comparison of the qualifications of complainant and the selectee (i.e. that the selectee received an "Outstanding" on his most recent performance evaluation, and complainant received a lower rating of "Excellent), the record does not reflect that this comparison was provided by the responsible management officials themselves. 3 Although complainant claims compensatory damages as a remedy for the discrimination, such damages are not available under the ADEA. See Tellez v. Dep't of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005); Falks v. Dep't of the Treasury, EEOC Request No. 05960250 (Sept. 5, 1996). In addition, although complainant contends that reinstatement should be part of his relief because he retired on January 2, 2007, under the belief that his tour of duty (which was to end February 22, 2007) was not going to be extended, we note that a claim of constructive discharge is not currently before the Commission. Accordingly, we shall not order complainant's reinstatement. ?? ?? ?? ?? 8 0120072888 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036