Anne Stone v. Department of the Treasury 01A02572 July 6, 2001 . Anne Stone, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Bureau of Public Debt), Agency. Appeal No. 01A02572 Agency No. TD981099T DECISION Anne Stone (complainant) timely initiated an appeal from a final agency decision (FAD) concerning her complaint of unlawful 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleged that she was discriminated against on the bases of race (Asian), national origin (Korean), and age (54-58 at relevant times) when she was subjected to a pattern of non-promotion and denial of promotion opportunities to the Budget Analyst career ladder position, from 1993 to present.<1> The record reveals that during the relevant time, complainant was first employed as the Acting Lead Budget Analyst, Budget Assistant/Technician for the Office of Chief Counsel and the Office of Financing, and later, as of April 1998, as an Accounting Technician in the Administrative Accounts Branch at the agency's Bureau of Public Debt in Parkersburg, West Virginia. Believing she was a victim of discrimination, complainant sought EEO counseling and subsequently filed a formal complaint on December 18, 1997. At the conclusion of the investigation, complainant was informed of her right to request a hearing before an EEOC Administrative Judge or, alternatively, to receive a final decision by the agency. <2> Complainant requested that the agency issue a final decision. In its FAD, the agency dismissed complainant's allegation that she was subjected to a continuing pattern of discriminatory non-selections dating back to 1993. The agency noted that complainant did not contact an EEO Counselor until October 8, 1997. The agency determined that complainant failed to establish that her claim was timely under a continuing violation theory because complainant had a reasonable suspicion of discrimination well before she contacted the EEO counselor. In so finding, the agency noted that complainant was not selected for the Budget Analyst or Budget Analyst Trainee positions in 1993 and 1994 and was told that this was due to her communication problems. The agency also referred to a number of other Budget Analyst vacancies that were filled in 1995 and 1996 and held that complaint had a suspicion of discrimination long before October 8, 1997. The agency concluded that the only issue to be considered was, therefore, whether complainant was subjected to discrimination when she was not selected for two Budget Analyst positions in October 1997. Turning to the October 1997 non-selections, the agency noted that the record includes direct evidence of national origin discrimination. The agency cited the testimony of two witnesses who stated that they were told by the selecting official for these positions (SO) that complainant would never be promoted because her accent made her too difficult to understand. Another witness corroborated that complainant was often told that she had a communication problem. The agency held that nothing in the record supports a finding that complainant's accent would have interfered with her ability to perform the Budget Analyst job. The agency then noted that because complainant established that discrimination was a motivating factor in her non-selections, management was required to establish that it would have taken the same action absent the discrimination. The selecting official (SO) for the October 2, 1997 position testified that the selectee (S1) was selected because she was better qualified. The reviewing official (RO) for the October 30, 1997 non-selection testified that an individual (S2) had been detailed into the position because the union had “asked to review the package”. Since complainant was in a GS-7 position, she was not eligible for the detail. Based on the testimony of these witnesses, the agency found that management established that it had legitimate non-discriminatory reasons for not selecting complainant. The agency concluded that because management established that it would have taken the same action even absent a discriminatory motivation, complainant was not entitled to placement in the position, back pay, or other damages. The agency also concluded that complainant did not provide any evidence to support a finding of age discrimination. Complainant raises numerous contentions on appeal. First, she asserts that she did establish a continuing violation in regard to her allegation that she was subjected to a pattern of non-selections beginning in 1993. She also asserts that the record supports a finding of discrimination on the continuing violation claim. Complainant argues that the agency failed to establish by clear and convincing evidence, or by a preponderance of the evidence, that it would not have promoted complainant even absent discrimination. The agency argues that complainant failed to establish a continuing violation because she “should have had a reasonable suspicion of discrimination” as early 1993. In addition, the agency reiterated that because it established that it would have taken the actions in question even absent discrimination, complainant was not entitled to additional remedies. FINDINGS AND ANALYSIS Turning first to the procedural dismissal of complainant's allegation that she was subjected to a pattern of non-promotion and denial of promotion opportunities to the Budget Analyst career ladder position, from 1993 to present, we find that the agency improperly dismissed this claim. Failure to abide by the time requirement for contacting an EEO counselor can be excused as to certain allegations within a complaint when the complainant alleges a continuing violation, that is, a series of related discriminatory acts, one of which falls within the time period for contacting an EEO Counselor. Commission precedent also holds that evidence showing complainant had or should have had a reasonable suspicion of discrimination more than forty-five (45) days prior to initiating EEO Counselor contact will not preclude acceptance of the overall claim of ongoing discrimination. See Howard-Grayson v. United States Postal Service, EEOC Request No. 05990160 (December 3, 1999); Ferguson v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999); Meaney v. Department of the Treasury, EEO Request No. 05940169. If one or more acts falls within the time period for contacting an EEO Counselor, the complaint is timely with regard to all acts that constitute a continuing violation, provided the acts are interrelated by a common nexus. See Meaney, supra; Verkennes v. Department of Defense, EEOC Request No. 05900700 (September 21, 1990). We find that complainant established a continuing violation. Complainant's allegations are connected in that she claims that the same management officials continually denied her promotions due to her national origin, race, and age from 1993 through October 1997. It is undisputed that two of the non-selections discussed with the EEO Counselor, the October 2 and October 30, 1997 non-selections, fall within the time period for contacting an EEO Counselor. Accordingly, the Commission finds that the agency improperly dismissed complainant's claim that she was subjected to discriminatory non-selections from January 1993 to October 1997. Turning to the merits of complainant's claim, we note that Commission regulations make it unlawful to deny an individual equal opportunity due to the “linguistic characteristics of a national origin group.” See 29 C.F.R. § 1606.1. The Commission has held that an adverse employment decision may be predicated upon an employee's foreign accent only where it interferes materially with the job performance. See Daly v. United States Postal Service, EEOC Appeal No. 01933547 (September 14, 1993). Here, the record establishes that since late 1992/early 1993, the two individuals most directly involved with the decisions not to promote complainant to a career ladder Budget Analyst position<3>, SO and RO, have stated numerous times that complainant would never be promoted because her accent made her too hard to understand. The agency acknowledged in its FAD that complainant's accent would not have interfered with her ability to perform the Budget Analyst job. This is direct evidence of discrimination in that it demonstrates on its face a bias against a protected group and is linked to the complained of adverse action, here, non-promotion and denial of promotion opportunities to the Budget Analyst career ladder position, from 1993 to present. See Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory (Recent Developments), No. 915.002., p. 6 (July 14, 1992). Indeed, the agency acknowledged that this evidence established that it was motivated by discriminatory animus in not selecting complainant for the October 2, 1997 position. We find, therefore, that the non-selections and denial of promotion opportunities to which complainant was subjected were motivated by discrimination. The agency may limit its liability for these actions by establishing by clear and convincing evidence that it would not have promoted complainant throughout the period in question even absent discrimination. See Day v. Mathews, 530 F.2d 1083, 1085 (D.C. Cir. 1976); see also 29 C.F.R. § 1614.501(c)(1); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110) (as revised, November 9, 1999), 9-19. The agency failed to meet this burden. Although the agency eventually dismissed complainant's allegation that she was subjected to a pattern of non-promotion and denial of promotion opportunities to the Budget Analyst career ladder position, it had, at one time, accepted this claim for investigation. The record establishes that on May 18, 1998, five months after complainant formally complained of this treatment, the agency accepted the continuing violation claim for investigation and conducted an investigation. It then dismissed the allegation in the January 14, 2000 FAD. Given that the agency was aware of this claim for more than 3 years and conducted, at the very least, a seven-month investigation into it, we find that it has had ample opportunity to come forward with evidence to establish that even absent discrimination, it would not have promoted complainant to a career-ladder Budget Analyst position between 1993 and October 30, 1997. It has, however, failed to come forward with sufficient evidence to meet this burden. Indeed, except in regard to the October 2 and October 30, 1997 positions, the FAD does not include any explanations for why complainant was denied a promotion to a Budget Analyst career ladder position since 1993. In regard to the October 2, 1997 selection for a Budget Analyst at the GS 7/9 level with promotion potential to GS-12, the agency asserted that management had a legitimate nondiscriminatory reason for choosing S1, namely, that they believed she was better qualified to perform the functions of a Budget Analyst at the full performance level. In so testifying, SO noted both complainant and S1 were rated “highly qualified” for the position, but that S1 was enthusiastic and sold herself well, as well as having an excellent work history, some experience with accounting, an advanced degree, and outstanding references. SO noted that while complainant did a good job at the interview and had technical skills, she lacked certain analytical skills. We note, however, that while this explanation may be a sufficient to meet the agency's usual burden in disparate treatment cases of articulating a legitimate nondiscriminatory reason for its selection of S1, a mere assertion of a legitimate motive, without additional evidence proving that this motive was a factor in the decision and that it would have independently produced the same result, is not sufficient to meet the agency's burden in a case involving direct evidence of discrimination. See Recent Developments, 20. The agency must establish by clear and convincing evidence that S1 would have been selected over complainant even in the absence of an impermissible motive. See id. It failed to do so. Indeed, in contrast to management's testimony concerning complainant's qualifications, a review of the record reveals that complainant's last performance review under SO and RO, as well as her most recent performance evaluation under a different supervisor, indicate that complainant is highly successful. Several witnesses testified that complainant often performed work at the Budget Analyst level. Moreover, the official who rated and ranked the applicants for the position in question, ranked complainant higher than S1. Furthermore, the agency failed to establish by clear and convincing evidence that it would have assigned S2, rather than complainant, to the Budget Analyst position absent discrimination. Although RO testified that the position was filled noncompetitively and that complainant was therefore not subjected to discrimination, complainant's claim is that RO and SO worked to ensure complainant would not be promoted to a career ladder Budget Analyst position by denying her competitive promotions and by choosing to have numerous positions filled noncompetitively. Direct evidence establishes that RO and SO did not want to promote complainant to a Budget Analyst position because of her accent. Moreover, it is undisputed that RO could have filled this position competitively, but decided against it. Given these facts, the agency cannot satisfy its burden of establishing that S2 would have been promoted instead of complainant even absent discrimination by simply relying on RO's decision to fill the position noncompetitively. Accordingly, after a careful review of the record, including complainant's arguments on appeal, the agency's rebuttal to complainant's appeal, and arguments and evidence not specifically addressed in this decision, we find that the agency subjected complainant to an ongoing pattern of national origin discrimination between 1993 and October 30, 1997 when it failed to promote her and denied her promotion opportunities to a career ladder Budget Analyst position. In light of this conclusion, we do not reach complainant's claims based on race or age, since complainant's available remedies would not be affected even assuming arguendo she proved discrimination on an additional basis. The agency's final decision is therefore MODIFIED and the matter REMANDED in accordance with this decision and the ORDER below. ORDER The agency is ORDERED to take the following remedial actions: 1. The agency shall offer to promote complainant to the highest grade level Accountant series position in the Administrative Accounts Branch for which she is currently qualified and shall provide career ladder promotions under the appropriate personnel rules until complainant is promoted to the GS-12 level.<4> Complainant shall be given a minimum of fifteen (15) calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the agency will be considered a rejection of the offer, unless complainant can show that circumstances beyond her control prevented a response within the time limit. Effective immediately, the agency shall pay complainant at the GS-12 level. After complainant has attained the GS-12 position in accordance with this order, the agency shall continue to promote her as it would any other employee in her position, pursuant to the usual promotion process. 2. The agency shall determine the appropriate amount back pay (with interest, if applicable) and other benefits due complainant pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calender days after the date this decision becomes final. The agency's determination shall be based on the fact that, absent discrimination, complainant would have been promoted to Budget Analyst, GS-7/12 in 1993, and subsequently would have received all career ladder promotions to which an employee who performed in a fully successful manner was entitled.<5> Complainant shall cooperate in the agency's efforts to compute 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 complainant for the undisputed amount within sixty (60) 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 set forth below. 3. The agency shall provide training to RO, SO, RMO, and all employees at the facility, as to the agency's obligation to eliminate discrimination in the federal workplace, with specific reference to national origin discrimination. 4. The agency shall post the attached notice, as noted below. 5. The agency shall award reasonable attorney's fees and costs, as noted below. 6. The agency shall consider complainant's claim for compensatory damages incurred as a result of the agency's discriminatory actions. Within fifteen (15) calendar days of the date this decision becomes final, the agency shall notify complainant of her right to present evidence to the agency regarding her claims for compensatory damages. Complainant shall provide evidence that the damages claimed are a result of the agency's discrimination and evidence of the amount of claimed damages. Within thirty (30) calendar days of submission of such evidence, the agency shall issue a final agency decision on this issue, with appropriate appeal rights to the Commission. 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 post at its Parkersburg, West 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/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 (K0900) 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)(Supp. V 1993). 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 (M0900) 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 (R0900) 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 (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations July 6, 2001 Date NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated which found that a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. has occurred at the Department of Treasury, Bureau of Public Debt, Parkersburg, West Virginia facility (facility). Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The facility supports and will comply with such federal law and will not take action against individuals because they have exercised their rights under law. The facility was found to have discriminated on the basis of national origin when it denied an employee a promotion to a career ladder position since 1993. The agency has been ordered to: (1) offer to promote complainant to a position similar to and at the same grade level of that which she would have had absent discrimination (but, at complainant's request, in a different branch of the facility); (2) determine the appropriate amount of back pay and other benefits owed complainant; (3) provide EEO training to the responsible management officials and to all the employees at the facility; (4) award reasonable attorney's fees and costs, if appropriate; (5) award compensatory damages, if appropriate; and (6) post this notice. The facility will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all federal equal employment opportunity laws. The facility will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, federal equal employment opportunity law. Date Posted: Posting Expires: 1 The positions allegedly denied due to a discriminatory motivation are Budget Analyst positions in series 560 and are graded GS-7 (entry level) with promotion potential to GS-12 (journeyman). 2 On January 13, 1998, the agency accepted for investigation the issue of whether complainant was subjected to discrimination when she was not selected for the position of Budget Analyst on October 2, 1997 and on October 30, 1997. On January 22, 1998, the agency asked complainant to provide additional information concerning allegations involving events occurring more than 45 days before she contacted an EEO counselor. Complainant replied, setting forth in detail her experience of a pattern of non-promotion beginning in 1993. The agency did not respond. Subsequently, the agency sent complainant a copy of the Report of Investigation (ROI) on May 18, 1998, notifying her at this time that it was also accepting her allegation of a continuing pattern of discrimination. On July 7, 1998, the agency notified complainant that the ROI was complete and offered her an election between a hearing and a final agency decision (FAD). Complainant requested a FAD. Before issuing this FAD, the agency amended the ROI to include four additional affidavits. The FAD was issued on January 14, 2000. 3 The record indicates that a third management official (RMO) also made comments that he would never promote complainant to a Budget Analyst position in the earlier years of the relevant period. 4 Complainant was transferred to the Administrative Accounts Branch in the Spring of 1997. As a remedy for the agency's discriminatory actions, complainant requested, among other things, that she be placed in a position within this Branch, rather than a position in the Budget Branch under the supervision of RO and SO. Given the years of discriminatory treatment she suffered at the hands of RO and SO, we have granted this request. 5 Complainant requested that she receive a retroactive promotion dating back to the date upon which she first would have been qualified (time-in-grade) for a career ladder Budget Analyst position. The record indicates that this occurred sometime between January 1993 and November 1993. The exact date shall be determined by the parties on remand.