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. ?? ?? ?? ?? 2 0120080458 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 14 0120080458