Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120130097 Agency No. HSTSA013722011 DECISION On October 1, 2012, Complainant timely filed an appeal from the Agency's August 31, 2011, final decision (FAD) concerning her 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. For the following reasons, the Agency's FAD is AFFIRMED in part, and REVERSED and REMANDED in part. ISSUES PRESENTED 1. Did Complainant show by a preponderance of the evidence that the Agency discriminated against her on the basis of race (African-American) when she was not selected for conversion to a full-time Transportation Security Officer (TSO) position? 2. Did Complainant show by a preponderance of the evidence that the Agency discriminated against her on the basis of race (African-American) and reprisal for prior protected EEO activity when she was not allowed to bid on her desired shift based on her seniority, and was forced to accept an undesirable shift? BACKGROUND Complainant worked as a Transportation Security Officer (TSO) at the Agency's Bob Hope Airport in Burbank, CA, serving in a part-time capacity of four eight hour shifts weekly. FAD, p. 3; Investigative File (IF), p. 119. Complainant applied for conversion to a full-time TSO position, but she was not selected for full-time conversion on June 2, 2011. Report of Investigation (ROI), p. 2. Applicants for the full-time TSO position consisted of eight White, three Asian, four Hispanic/Latino and four African American (including Complainant) TSOs. FAD p. 5. Four applicants did not identify their race. FAD, p. 5. Four White, two Asian and two Hispanic/Latino TSOs were selected for full-time conversion. FAD, p. 5. Complainant filed an EEO complaint alleging race discrimination for the non-selection, and subsequently filed another complaint alleging reprisal discrimination in not being allowed to bid on an evening shift, rather than morning shifts. FAD, p. 1-2.1 On February 15, 2012, the Agency consolidated the two EEO complaints, filed on July 22, 2011 and January 17, 2012, alleging that the Agency discriminated against her on the basis of race (African-American) and reprisal when: 1. On June 2, 2011, Complainant was not selected for conversion to a full-time TSO position; 2. On September 8, 2011, Complainant was not allowed to bid on her desired shift based on her seniority and she was forced to accept an undesirable shift. I. NON-SELECTION FOR FULL-TIME CONVERSION Regarding the first claim, Complainant alleged that she should have been selected for full-time conversion because she was better qualified than the selectees, and the selection was discriminatory. FAD, p. 5. According to management, selection for full-time conversions were based on the following factors: (1) employment as a part-time TSO for at least six months; (2) employee's reliability considering number of tardies, unscheduled leave and AWOLs; (3) work history; (4) disciplinary record; (5) mid-year Performance Accountability & Standards System (PASS) rating for the three core competencies, interpersonal skills, critical thinking and oral communications2; and (6) supervisor recommendation. ROI, p. 21. Following are the credentials of the eight officers selected for full-time conversion as reflected on a spreadsheet forwarded to the selecting official. Ex. F-26, Applicant Comparison For Selection Decision, IF p. 234. Selectee one had no disciplinary actions or attendance issues; PASS ratings consisted of 3 for interpersonal skills, 2 for critical thinking and 3 for oral communication; 8 supervisors recommended full-time conversion. Ex. F-26, IF, p. 234. Selectees two, three and four had no disciplinary actions or attendance issues; PASS ratings of 2 for interpersonal skills, critical thinking and oral communication; five supervisors recommended selectee two for full-time conversion; four supervisors recommended selectee three for full-time conversion and one supervisor did not; three supervisors recommended selectee four for conversion and one did not. Ex. F-26, IF, p. 234. Selectee five had no disciplinary actions; one tardy in his attendance record; PASS ratings of three in areas of interpersonal skills, critical thinking and oral communication; six supervisors recommended selectee five for conversion. Ex. F-26, IF, p. 234. Selectees six, seven and eight had no disciplinary actions; two tardies in their attendance records; and PASS ratings of 2 for interpersonal skills, critical thinking and oral communication. Ex. F-26, IF, p. 234. Seven supervisors recommended selectee six for full-time conversion; six supervisors recommended selectee seven while two did not; and four supervisors recommended selectee eight. Ex. F-26, IF, p. 234. In comparison, Complainant had no disciplinary actions; two unscheduled absences; PASS ratings of 2 for interpersonal skills, 2 for critical thinking and 3 for oral communication; and seven supervisors did not recommend Complainant while two did recommend her for full-time conversion. Ex. F-26, IF, p. 234. While Complainant had approximately five years of part-time experience with the Agency, all but of the selectees had approximately six-months of part-time experience with the Agency. Ex. F-1, IF p. 115. Officials involved in the selection decision are as follows. The selecting official, or "final approving official," was the Acting Federal Security Director. Ex. F-3, IF, p. 126; see also, Ex. B-1, EEO Counselor's Report, IF, p. 22 (noting that the selecting official "did not meet with the conversion candidates prior to selection" but "relied upon the data regarding selection criteria"). The Assistant Federal Security Director for Screening prepared the materials, specifically the spreadsheet forwarded to the selecting official, which was used to make the selection decision. Ex. F-4, IF, p. 133-34. The Assistant Federal Security Director for Screening is also the official who requested recommendations from supervisors. Ex. F-4, IF, p. 133. The Scheduling Operations Officer solicited recommendations for Complainant and one other TSO, and entered them on the spreadsheet which was eventually forwarded to the selecting official. Ex. F-6, IF, p. 143. Complainant identifies her second level supervisor and shift manager, the Transportation Security Manager, as the responsible management official. Ex. B-1, EEO Counselor's Report, IF, p. 22. First level supervisors allegedly offered candidate recommendations. FAD, p. 4. II. INABILITY TO BID FOR SHIFT Regarding the second claim, Complainant alleged that she was denied the ability to bid on afternoon shifts in reprisal for filing an EEO complaint alleging race discrimination for her non-selection. This was because Complainant and one other African-American TSO had been working 32-hours a week in afternoon shifts. Report of Investigation (ROI), p. 5. In September 2011, Complainant was informed that the afternoon shift would no longer be available for her to bid on due to "operational needs," and that she would be restricted to morning shifts. ROI, p. 5. Complainant indicated that she and one other African-American co-worker were the only ones affected by this change, since other part-time employees who worked 20 hours weekly were allowed to bid for afternoon shifts. Id. Complainant maintains that even though management talked out phasing out the afternoon shift for 32-hour employees for some time, they did not do so until after she filed her EEO complaint. ROI, p. 6. At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to the alleged discrimination. CONTENTIONS ON APPEAL Complainant contends the following on appeal regarding her non-selection for conversion to a full-time TSO position: (1) allegations that supervisors rated Complainant poorly are not consistent with how supervisors have traditionally rated Complainant; (2) testimony about whether supervisors recommended Complainant for conversion to full-time is not consistent because there is testimony from some supervisors that they did not have the opportunity to rate Complainant since her name was not on the list; (3) statement that seven supervisors said "no" and two said "yes" is false because the numbers do not add up; (4) allegations that she had an attendance problem were false since he accumulated more than 300 hours of sick leave and only used two sick days while officers who were tardy to work were deemed to have less of an attendance issue than Complainant; (5) Complainant has been working with the Agency for more than five and a half years whereas seven of the selected candidates have been working with the Agency for six months. The Agency did not offer arguments on appeal. ANALYSIS AND FINDINGS Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). I. PRIMA FACIE CASE A. Race Discrimination Complainant establishes a prima facie case of race discrimination by showing that: (1) she is a member of a protected class; (2) she was subject to an adverse employment action; and (3) she was accorded treatment different from that given to persons otherwise similarly situated who are members outside of her protected group. McDonnell Douglas, 411 U.S. at 802. Complainant established the following for her prima facie case on her non-selection claim: (1) she is African American; (2) she met the qualifications for the position in being employed by the Agency for at least six months; (3) she was not selected for the position and (4) selectees for the position consisted of four Caucasian, two Asian and two Hispanic/Latino individuals. ROI, p. 3-5. B. Reprisal Complainant establishes a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant established the following for her prima facie case on her claim that she was not allowed to bid on a particular shift: (1) she engaged in protected EEO activity by filing an EEO complaint for the race discrimination claim in the instant case; (2) management was aware of her protected activity in June 2011 when she participated in EEO counseling; (3) she was denied the ability to bid for an afternoon shift as a 32-hour employee; and (4) she was denied the ability to bid for the shift approximately three months after first filing her EEO complaint. ROI, p. 18. Therefore, Complainant stated a prima facie case of race discrimination and reprisal. II. AGENCY'S LEGITIMATE NONDISCRIMINATORY REASONS First, regarding Complainant's claim that she was not selected for conversion to a full-time position, the Agency indicates that the selections were also based on "employee work history and performance," attendance, disciplinary action file and supervisory recommendations. FAD, p. 4. The Agency stated that even though Complainant was very competitive in areas of performance, she took two unscheduled days of leave from work. FAD, p. 4. Additionally, Complainant was not selected for the conversion because seven out of nine supervisors didn't think Complainant was completely ready to serve in a full-time capacity in comparison to the other candidates. FAD, p. 4. Additionally, a Transportation Security Manager (TSM) testified that Complainant had several letters of counsels due to conduct issues, and that she was always challenging her supervisors. FAD, p. 4. Second, regarding Complainant's claim that she was not allowed to bid for a shift in accordance with her seniority, the Scheduling Operations Officer (SOO) testified that she made the decision to eliminate the 32-hour p.m. shift due to operational needs. FAD, p. 5. The SOO explained that there were two employees who worked the 32-hour shift and six employees who worked the 25-hour shift. FAD, p. 5. The SOO wanted to keep the group of eight employees together to maximize productivity because if he placed only two employees on the afternoon shift, it was not enough to open a lane because four employees are needed to open a lane. FAD, p. 5. If the SOO placed all eight employees together on the morning shift where there was higher passenger volume, they would be able to open two lanes. FAD, p. 5. III. PRETEXT Pretext can be demonstrated by "showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Dalesandro v. United States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (citing, Morgan v. Hilti, Inc., 108 F3d 1319, 1323 (10th Cir. 1997)). A. Non-selection To Full-time TSO Position Complainant was able to demonstrate pretext for a number of reasons. i. Supervisory Recommendations First, Complainant alleged that contrary to the Agency's legitimate nondiscriminatory reason, supervisors did not in fact rate her for the position. Complainant's Brief, p. 2.3 Two STSOs testified that Complainant's name was not on the original list sent to supervisors to solicit recommendations, therefore, she was not an individual who the supervisors would have offered a recommendation. Complainant's Brief, p. 3. Complainant's name was indeed not on the list sent to supervisors for recommendations. Complainant's Brief, p. 3 (citing, IF 221, 219). However, the Acting Assistant Federal Security Director for Screening explained that the recommendation request for Complainant and another Transportation Security Officer (TSO) were submitted separately because they submitted their applications after the process of gathering information and recommendations had already begun. ROI, p. 10. The Acting Federal Security Director for Screening stated that when he sent the original e-mail soliciting recommendations, Complainant and the other TSO had not yet requested to convert to full-time, but only did so subsequently, and their names were then added to the recommendation list and recommendations were collected for them separately. IF, p. 135. The Agency does not explain why it sought to solicit recommendations from supervisors before the application period for the position closed, therefore, not allowing Complainant's name to be reflected on the applicant list used to solicit recommendations when Complainant apparently submitted her application timely.4 Second, notwithstanding the fact that Complainant's name was not on the list sent out to collect recommendations from supervisors, the Agency maintains that supervisors rated Complainant verbally and that seven supervisors did not recommend her for full-time conversion, while two recommended her for such conversion. See e.g., Exhibit F-26, IF p. 234. The official who allegedly gathered these verbal recommendations for Complainant could not recall which supervisors she asked because "it was done with such haste and it was done so long ago." Ex. F-6, IF, p. 142. Further, while the other candidates were evaluated by a "yes" or "no" recommendation, there were also written recommendations stating the reasons for the supervisor's decision. See, Ex. F-19, IF, p. 213 (indicating for example that supervisor did not recommend candidate because they were "forgetful"). When asked why she did not gather written recommendations for Complainant and the other African-American TSO, the official gathering the recommendations stated that she did not know what the procedure was to take these written recommendations. Ex. F-6, IF, p. 142. In addition to the absence of documented evidence of the alleged negative supervisory ratings, other evidence indicates that the Agency did not collect recommendations for Complainant's application, at least not from all supervisors. This is evident in the complaint file where two supervisors testified that since Complainant's name was not on the original list sent to all supervisors, they did not evaluate her verbally or by via e-mail. See Complainant's Brief, p. 2; ROI, p. 15 (supervisor testifying that he did not rate Complainant because her name was not on the list sent by management and that no one approached him about a verbal recommendation but that he would have recommended Complainant positively); ROI, p. 13 (supervisor testifying that she did not provide a recommendation for Complainant because her name was not on the list). Additionally, two other supervisors indicated that they evaluated Complainant via e-mail, but this is contradicted by management's testimony that Complainant's name was not on the list that was sent to supervisors and that they garnered her recommendations verbally. See Complainant's Brief, p. 3-4; ROI, p. 8 (indicating that Complainant's name was not on the initial list sent out for recommendations); but see, ROI, p. 12 (testifying that Complainant's name was on the list sent by management and that supervisor recommended Complainant and typed a line of feedback because Complainant was "very professional and very reliable"). Therefore, Complainant was able to demonstrate that the Agency's legitimate, nondiscriminatory, reason was unclear and inconsistent. The Agency's reason is placed in further doubt due to the testimony of another supervisor. The supervisor noted that Complainant "was an outstanding worker but that she was headstrong and got caught up in emotions at times." ROI, p. 11. The supervisor testified to telling the official soliciting the recommendation that "he was on the fence" about Complainant. Id. It is unclear how this recommendation would have been captured in the "yes/no" scheme the Agency alleges was utilized. Further, this testimony reflects the importance of having the supervisor's reason(s) for the recommendation reflected for applicants. In this instance, while the supervisor indicated that Complainant's performance was outstanding, his rating is based on Complainant's "emotions." Officials did not have the opportunity to review this reasoning to determine whether it was an appropriate basis for a "no" evaluation, since it would not seem to be related to Complainant's performance. Finally, Complainant points out that the allegation that supervisors rated her poorly is not consistent with how the supervisors have traditionally rated her. Complainant's Brief, p. 4. Complainant consistently achieved "Role Model" and Exceed" standards for two years, and her supervisor's recommendations make up 40 to 50% of these performance evaluations. Complainant's Brief, p. 4. Complainant asserts that it would have been impossible for her to have achieved such high scores if supervisors thought so poorly of her. Complainant's Brief, p. 4. Complainant received eight recognition awards from her supervisors and in 2011 she received a perfect score. ROI, p. 17. The fact that supervisors testified to the effect that they were not asked to recommend Complainant, combined with the fact that the official charged with collecting the recommendations could not recall whom she asked and departed from the procedure used for other employees, make the Agency's legitimate nondiscriminatory reason that they did not select Complainant in significant part due supervisory recommendations unworthy of credence. Further, the Agency did not document supervisor recommendations in the same manner as they did for other applicants, given the assertion that it was so central to their selection decision. This undermines their argument that Complainant was not selected due to these recommendations. See, ROI, p. 9 (testimony of Transportation Security Manager that Complainant was not selected for full-time conversion "because of the supervisors' recommendations"). While there may be other explanations for why the Agency has erroneous and contradictory documentation for the supervisory recommendations, Complainant carried her burden of proof in demonstrating the Agency's assertion that her non-selection was based on supervisory recommendations to be unworthy of credence, and therefore, pretext. ii. Attendance And Disciplinary Action/Counseling Complainant addressed the Agency's assertion that she was not selected in part due to attendance and counseling on her record. Complainant points out that she only took two days of sick leave when she had accumulated 300 hours of sick leave over the course of five years of work with the Agency. Complainant's Brief, p. 5. Complainant pointed out that she had zero incidents of being late to work while several of the selectees had multiple incidents of tardiness. Id., p. 5. Evidence indicates that three of the selectees were late to work twice in the six month period at issue, and one selectee was late to work once. Ex. F-26, IF, p. 234. As Complainant points out, it is unclear why employee lateness to work would be considered more favorable than the absences she took for earned sick leave, or why they would be equated. Since the Agency selected other applicants with the same number of attendance issues as Complainant i.e. two tardies, this counsels against the conclusion that Complainant was not selected due to her two unscheduled absences. Further, the Agency stated in the FAD that Complainant was not selected for full-time conversion because she had "'several Letters of Counsels due to conduct issues that required her to be counseled." FAD, p. 4. In committing to this legitimate, nondiscriminatory, reason, the Agency offered no support for the contention that Complainant had LOCs for the six month evaluation period at issue, or prior to that. The spreadsheet that was submitted reflecting candidate information to the selecting official does not reflect that Complainant had any LOCs, while it reflects that other individuals had LOCs. See Ex. F-26, IF, p. 234. This contradiction greatly undermines the Agency's assertion that Complainant was not selected in part due to LOCs. Also, the selecting official indicated in her affidavit that Complainant did not have any disciplinary actions. Ex. F-26, IF, p. 127. Therefore, the Agency's assertion that Complainant had LOCs or disciplinary actions is contradicted by the record. iii. Work History And Performance The selecting official acknowledged that Complainant's work history and performance was competitive. Ex. F-26, IF. p. 127. The official stated that it was mentioned prior to selections that "only the best of the best would be selected and in some cases the ones that were selected vs. the none selected may have been equal in most areas of evaluation....with that, the reason that [Complainant] was not selected was due to her unscheduled absences as well as not getting favorable recommendations from her supervisors." Id. at 128. The record reveals that Complainant had higher mid-year PASS evaluations than all but two of the selectees. Ex. F-26, IF, p. 234.5 Complainant had also been working with the Agency for approximately five years in a part-time capacity, while all but one of the selectees was working with the Agency for approximately six months in a part-time capacity. Id; see also, Ex. F-17 (indicating that [entry on duty dates] would be used as a tiebreaker). During the time with the Agency, Complainant has exceeded standards and received numerous awards. Ex. F-2, p. 124. However, despite these facts, Complainant was not selected due to the alleged supervisory recommendations, unscheduled absences and LOCs which, as we have discussed, cannot be substantiated.6 Considering the inconsistencies and contradictions in the record together, Complainant was able to show that the Agency's legitimate, nondiscriminatory, reasons for not selecting her for full-time conversion were pretext for discrimination. B. Shift Bid Complainant points out that management always stated they would phase out the 32-hour shift, but did not do so until after she filed her EEO complaint regarding non-selection to the full-time TSO position. ROI, p. 6. Complainant and one other employee were the only individuals that were affected by the change. ROI, p. 6. As a result, Complainant and the other employee could no longer bid on any afternoon shifts, and instead had to bid on morning shifts, which Complainant alleged was a hardship because she had to begin working at 5:00 a.m., when she was used to working during the afternoon. Ex. F-1, IF, p. 120. In order for Complainant to have demonstrated pretext, she had to show that the elimination of the afternoon shift was not due to operational needs, specifically, perhaps that mornings did not have higher passenger volume or that it did not take four TSOs to open a lane as the Scheduling Operations Officer (SOO) asserted. FAD, p. 5. It is not sufficient for her to show that the 32-hour shift was eliminated in September 2011, after she filed an EEO complaint on July 21, 2011, especially given that another employee was affected by elimination of the 32-hour shift. Additionally, the SOO who was responsible for eliminating the 32-hour shift, testified that she became aware of Complainant's prior EEO complaint when the EEO Investigator contacted her for an interview in January 2012, which is after the 32-hour shift was eliminated. ROI, p. 15. The Acting Federal Security Director for Screening, also the selecting official in Complainant's non-selection claim, testified that she became aware of Complainant's prior EEO complaint on October 26, 2011, when she received an e-mail from the Manager of the Formal Complaints Division, which is also after the 32-hour shift was eliminated. Ex. F-3, IF, p. 129. Complainant urges that she believed management found out in June when she was going through EEO counseling, but there is no evidence to support this. ROI, p. 18. Therefore, Complainant has not demonstrated that the Agency's legitimate, nondiscriminatory, reason for not allowing Complainant to bid on a 32-hour afternoon shift was pretext for discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD is AFFIRMED in part, and REVERSED and REMANDED in part for compliance with this decision and the Order below. The Agency is ordered to take the following actions: 1. Within 120 (one hundred and twenty) calendar days from the date this decision becomes final, the Agency must provide training to the Agency personnel responsible for the discriminatory non-selection, with special emphasis on the prevention and elimination of discrimination based on race. 2. Within 120 (one hundred and twenty) calendar days from the date this decision becomes final, the agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant between the period of non-selection to the full-time position at issue in this complaint, and the effective date of her conversion to a full-time TSO position, pursuant to 29 C.F.R. §1614.501. Complainant must cooperate in the agency's efforts to compute the amount of back pay, interest, and benefits due, and must provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay, interest, and/or benefits, the agency shall issue a check to the appellant for the undisputed amount within one hundred and twenty (120) calendar 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 120 (one hundred and twenty) calendar days from the date this decision becomes final, the agency is ordered to conduct a supplemental investigation into and determine Complainant's entitlement to non-pecuniary compensatory damages. Complainant must cooperate in the agency's efforts to compute compensatory damages and provide relevant information requested by the agency. 4. Within 120 (one hundred and twenty) calendar days from the date this decision becomes final, the Agency is ordered to post at its Bob Hope Airport in Burbank, CA, copies of the notice discussed below. 5. The Agency shall strongly consider taking appropriate disciplinary action against the Agency managers and supervisors involved in the discrimination. 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). 6. 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 all of the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Bob Hope Airport in Burbank, CA, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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 (M0610) 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), at 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) 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 April 30, 2015 __________________ Date 1 Although the issue as accepted for investigation indicates that Complainant's race is a basis for the alleged denial of her bid rights, Complainant clarified in her Supplemental Affidavit that she did not believe her race was a factor and that she alleges only retaliation with regard to this complaint. FAD, p. 2 (citing, IF, p. 119). 2 Ratings of "3" are the highest ratings for 2011 mid-year ratings reflected on the spreadsheet of candidate qualifications forwarded to the selecting official. Ex. F-26, IF, p. 234. The record does not reflect a breakdown of the PASS ratings, so we will assume that increasing numbers reflect better PASS ratings i.e. a rating of "3" is better than a rating of "1." 3 According to the Agency, supervisory recommendations came from "ALL the supervisors that worked and interacted with each officer." Ex. B-1, EEO Counselor's Report, IF, p. 21. 4 Even though Complainant's name is indeed not listed on the spreadsheets in the complaint file reflecting supervisory recommendations, one supervisor testified inconsistently that Complainant's name was on the list, and that she recommended Complainant and "typed a short sentence of feedback saying that [Complainant] was reliable and hardworking." Ex. F-8, IF, p. 152. 5 Testimony in the record suggests that mid-year PASS ratings were not available for a number of the selectees because they had not been there the requisite six months in order for those scores to be generated. See e.g., ROI, p. 9. However, the spreadsheet allegedly sent to the selecting official had PASS scores for all candidates. Ex. F-26, IF, p. 234; see also, ROI, p. 8 (indicating that Ex. F-26 was the spreadsheet the selecting official used to make her decision). 6 Complainant received perfect scores for all three categories on her 2011 end of year PASS evaluation, which was three months after the selection decision at issue. Ex. F-1, IF, p. 122. Complainant was subsequently selected for conversion to full-time effective December 4, 2011. Ex. F-3, IF. p. 128. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2013-0097 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130097