Willie Stewart, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Agency), Agency. Request No. 0520070124 Appeal No. 0120053702 Hearing No. 140-2004-00270X Agency Nos. H505-0547, DOT-7-03-2186 GRANT Complainant timely requested reconsideration of the decision in Willie Stewart v. Department of Homeland Security (TSA), EEOC Appeal No. 0120053702 (October 12, 2006). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b). In our previous decision, the Commission determined that an EEOC Administrative Judge (AJ) properly issued a decision without a hearing finding no discrimination on Complainant’s race and sex discrimination complaint. The Commission GRANTS Complainant’s request for reconsideration herein because we find that our previous decision erred in finding that the AJ properly found no race discrimination in this case. ISSUE PRESENTED The issue presented is whether the previous decision involved a clearly erroneous interpretation of law when it upheld an AJ’s finding that Complainant was not subjected to race or sex discrimination when the Agency failed to select him for a Screening Manager position. BACKGROUND The record reveals that Complainant began his employment with the Agency on August 3, 2002, as a Supervisory Transportation Security Screener, SV-0019, at the Raleigh-Durham, North Carolina International Airport (RDU). At the time that he applied for the Transportation Security Screening Manager position, Complainant had been a Supervisory Transportation Security Screener at RDU for approximately five months. Investigative File (IF), p. 86. In this position, Complainant was responsible for training approximately 50 Agency employees to use electronic detection and imaging equipment and to provide frontline security in order to protect air travelers, airplanes, and airports. Complainant also acted as a Lane Supervisor, supervising team members on the various component tasks within the duties of a Security Screener, including hand-wanding, pat-down searches, the operation of x-ray machines, and baggage screening. Id. Complainant also successfully mentored his team members to pass the Imaging Master Tester (IMT) on their first attempt to become certified Security Screeners. Complainant provided daily briefings to team members and wrote shift summary reports. Additionally, Complainant successfully completed the Basic Screener Training Program; received 60 hours of on-the-job training on electronic equipment; successfully passed the IMT on his first attempt to become a certified Security Screener; completed the Supervisory Screener Training Program; and served as a Checkpoint Supervisor. IF, pp. 54, 91. Complainant also previously served as a Food Service Director, Senior Correctional Officer, and Food Services Manager at the Department of Justice. IF, pp. 87-89. During the relevant time period, Complainant had a Bachelor of Science degree in Human Sciences (cum laude) and was a candidate for a Master’s degree in Human Sciences/Institutional Management and Associate of Arts degree in Computer Information Sciences. IF, p. 84. Complainant also received several awards and medals for his military service. IF, p. 90. In or around January 2003, the Agency issued vacancy announcement TSA-RDU-03-001 for the position of Transportation Security Screening Manager, SV-1801-H (multiple vacancies). The vacancy announcement stated that Transportation Security Screening Managers are responsible for managing screening checkpoints. IF, p. 72. Complainant applied for the Transportation Screening Manager position, and the Agency rated him “qualified” for the position. As part of the selection process, the selecting official, the Federal Security Director for RDU and the Fayetteville, North Carolina Regional Airport, convened a selection panel consisting of an Administrative Officer, a Screening Manager, and an Aviation Security Inspector. A Human Resources Specialist served as a “non-voting technical advisor” to the panel. The panel evaluated applicants in the following five rating factors: 1) skill in managing staff on various shifts; 2) knowledge of the theories, dynamics, and factors underlying the aviation screening process; 3) knowledge sufficient to be able to operate basic security equipment; 4) skill in communicating technical and non-technical information orally and in writing; and 5) ability to manage a diverse workforce and leading others, including planning and assigning work, selecting employees, promoting EEO, human relations, and improving and controlling performance. IF, p. 73. Applicants for the position were required to submit a narrative addressing the five rating factors and a resume or an Optional Application for Federal Employment Form (OF-612). Id. According to the record, the selection panel evaluated the seven eventual selectees as earning 19 to 21 points out of 23 total points, while Complainant earned 11 points. Complainant, while qualified, was not deemed “best qualified” or recommended for the position by the selection panel, and consequently, was not selected for the position. The selecting official chose the seven applicants who were given the highest scores by the recommending selection panel for the Transportation Screening Manager positions, including six Caucasian males and one African-American male. PROCEDURAL HISTORY On April 9, 2003, Complainant filed a complaint in which he alleged that the Agency subjected him to discrimination on the bases of sex (male) and race (African-American) when, on February 18, 2003, the Agency failed to select him for the position of Transportation Security Screening Manager, SV-1801-H, at RDU, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. In an investigative affidavit, Complainant asserted that he should have been selected for the position because his work performance, leadership, educational attainment, knowledge, skills, and abilities were excellent matches for the position. IF, p. 56. Complainant stated that two of the Caucasian selectees were only Lead Screeners (SV-F), whereas he was a Supervisory Screener (SV-G), and noted that he had supervised one of the Caucasian selectees. IF, p. 57. Complainant further alleged that when the Agency issued the vacancy announcement for the Transportation Security Screening Manager position, the selecting official held a meeting with supervisors in which he stated that the application process for Screening Managers was “nothing more than a whitewash to appease headquarters, and that the people who had been selected without advertising the positions would stay in those positions regardless of the selection process.” IF, p. 58. Complainant requested placement into the position of Transportation Security Screening Manager, SV-G-1801-H, back pay, and compensatory damages as remedies for the discrimination. Id. 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 AJ. On July 21, 2004, Complainant timely requested a hearing. On February 10, 2005, the AJ issued a notice of her intent to issue a decision without a hearing. Thereafter, in a brief decision dated February 28, 2005, the AJ found that Complainant failed to prove that he was discriminated against because of his race or sex. Specifically, the AJ determined that, although Complainant established a prima facie case of sex1 and race discrimination, the Agency provided legitimate, non-discriminatory reasons for its actions by showing that the seven applicants selected for the positions had the highest scores (19 to 21 points out of 23 total points) among the best-qualified candidates, and that Complainant scored 11 points, and therefore, was not among the best qualified. The AJ concluded that Complainant failed to provide any evidence to support a finding that the Agency’s explanation was pretextual. On March 22, 2005, the Agency issued a final order that fully adopted the AJ’s findings. On April 19, 2005, Complainant appealed this matter to the Commission. In a decision dated October 12, 2006, the Commission affirmed the Agency’s final order. Willie Stewart v. Dep’t. of Homeland Sec., EEOC Appeal No. 0120053702. On November 11, 2006, Complainant requested that the Commission reconsider its decision. In his request for reconsideration, Complainant maintains that the AJ erred in her decision not to grant Complainant’s motion to amend his complaint; that the Agency failed to conduct an adequate investigation of Complainant’s complaint; and that the Agency’s articulated reasons for not selecting Complainant are “weak, suspect, vaporous, and a pretext for discrimination.” The Agency did not submit a response to Complainant’s request for reconsideration. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also EEOC Management Directive for 29 C.F.R. § 1614 (EEO MD-110), Chap. 9, § VI.B. (Nov. 9, 1999) (both the Administrative Judge’s determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Summary Judgment The Commission’s regulations allow an AJ to issue a decision without a hearing when he finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). As discussed further below, we find that the issuance of a decision without a hearing was appropriate. However, we find that the AJ erred when she found in favor of the Agency rather than Complainant. The Investigation As a preliminary matter, we note that on November 8, 2004, the AJ ordered the Agency to conduct a supplemental investigation because the investigative record was incomplete. Supplemental Report of Investigation, AJ’s Order, p. 2. The investigative record contained a copy of the initial report of investigation, which consisted of the investigator’s investigative summary; the counselor’s report; a notice to Complainant of his non-selection; the vacancy announcement; Complainant’s affidavit; the selecting official’s affidavit; an applicant’s affidavit; a table showing the applicants’ positions, grades, demographic information (race and sex), and selection panel scores; employee assignments; Complainant’s application package; and various documentation pertaining to Complainant’s health benefits, workplace conduct, evaluation, and ultimate resignation in January 2004. In the AJ’s order, the AJ determined that the record did not contain any specific documentation (other than a summary of ratings) that explained how the ratings were derived, such as “notes, matrix, etc.” Id. The AJ concluded that the deficiencies in the record meant that that there was “no specific reason provided for Complainant’s non-selection.” Id. Accordingly, the AJ ordered the Agency to supplement the record with specific documentation that explained the ratings of the candidates and affidavits from two co-workers cited as witnesses by Complainant who were not involved in the selection process. The Agency completed the supplemental investigation, which included affidavits from the two co-workers; Knowledge, Skills and Abilities (KSA) narratives submitted by applicants for the position; Merit Promotion Credit scoring sheets; a job analysis of the Transportation Security Screening Manager position; the Human Resources Management Policy for internal assignments; and an affidavit from the Human Resources Specialist who served as a non-voting technical advisor to the selection panel. We note that EEO regulations provide that the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint. 29 C.F.R. § 1614.108(b). An appropriate factual record is one that allows a reasonable fact-finder to draw conclusions as to whether discrimination occurred. Id. Ultimately, Agencies are responsible for conducting an appropriate investigation of complaints filed against them. MD-110, at Chap. 5, § V.A. Accordingly, the investigator is required to conduct a thorough investigation, identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome. MD-110, at Chap. 6, § VI.D. In essence, an investigator must exhaust those sources of information likely to support both the positions of a complainant and the agency. Id. Although the AJ in this case issued a decision without a hearing in favor of the Agency based on the initial and supplemental investigations, we find that the supplemental investigation did not cure the deficiencies in the investigation. Specifically, despite the supplemental investigation, the record still does not contain the Agency’s explanation for the selection panel’s scores that were cited by the Agency as the basis for its selections. For instance, the record does not contain investigatory statements from the selection panelists who had first-hand knowledge of the reasoning behind the scores given to Complainant and the selectees, or reflect that the investigator sought such statements. The two Agency officials who provided statements were not on the selection panel and only provided an overview of the mechanics of the selection process; they did not articulate the reasoning that produced the scores. See O’Neill v. Dep’t of State, EEOC Appeal No. 0120083597 (Jan. 15, 2009) (inadequate investigation when the record only contained generalized affidavit testimony regarding the process used to make promotion decision but no evidence that provided an individualized assessment as to why complainant was ranked “mid-ranked,” which resulted in his non-promotion). In light of the deficiencies that remain in the record, it is inexplicable that the AJ issued a decision without a hearing in favor of the Agency. See Petty v. Dep’t of Defense, EEOC Appeal No. 0120024206 (July 11, 2003) (an AJ may properly issue a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition). Further, we note that the AJ deprived Complainant of the opportunity to respond to her notice of intent to issue a decision without a hearing. See Petty, EEOC Appeal No. 0120024206 (an AJ may properly issue a decision without a hearing only after parties are given opportunity to respond to notice of proposal to issue such a decision). The AJ’s notice of intent to issue a decision without a hearing stated that the parties had until March 2, 2005 to respond, but the AJ issued her decision on February 28, 2005. The AJ’s decision stated that neither party responded to her notice of intent to issue a decision without a hearing, but both parties agreed on appeal that Complainant responded in opposition to the AJ’s notice on March 1, 2005. In that response, Complainant pointed out the inadequacies in the investigation, and argued that the Agency failed to meet its burden of production because it provided a summary of applicant scores but did not explain how the scores were derived. Hearing Exhibit 3. Not only did the AJ’s actions compound the inadequate investigation by prematurely issuing a decision without a hearing before Complainant had the opportunity to respond, but our previous appellate decision also erred when it ratified these errors by affirming the AJ’s decision. With this decision, we address and rectify our previous errors. Disparate Treatment – Non-selection Claims of discrimination in disparate treatment cases are generally examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). In the non-selection context, a complainant may establish a prima facie case of race or sex discrimination by showing that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he was not selected for the position; and (4) he was treated differently than similarly situated persons outside his protected group. EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (Sept. 18, 1996); Williams v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). Once a complainant has established a prima facie case, the burden of production then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts to the complainant to demonstrate by preponderant evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is his obligation to show that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Prima Facie Case Upon review of this matter, we note that Complainant is an African-American male who applied for a Transportation Security Screening Manager position, the Agency deemed him qualified for the position, and six Caucasian males were selected for the position.2 No females were selected for the position. Thus, we find that Complainant clearly established a prima facie case of race discrimination, but failed to establish a prima facie case of sex discrimination. Burden of Production Because Complainant established a prima facie case of race discrimination, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not selecting Complainant. In his investigative affidavit, the selecting official stated that he made selections based upon the recommendations of the selection panel, and that Complainant was not selected because he was not deemed “best qualified” by the selection panel. Investigative Report, p. 63. When asked by the investigator to compare the strengths and weaknesses of Complainant’s qualifications with those of the selectees, the selecting official only stated that the seven selectees were referred to him with scores of 21, 21, 19, 19, 19, 19, and 19 out of a possible 23 points, but Complainant’s score was 11. The selecting official stated that Complainant was deemed not eligible for selection because the panel did not refer him as a best-qualified candidate. In her affidavit, the Human Resources Specialist stated that she reviewed each application to determine whether each candidate met the basic qualifications for the position, but she was merely a “non-voting technical advisor” to the panel. Supplemental Investigation, Tab 12. The Human Resources Specialist further explained that the selection panel rated each application, discussed the ratings, and arrived at a “consensus score” for each KSA. She stated that scores were tallied, and the selection panel referred all of the “best qualified” candidates with scores of at least 15 points to the selecting official, who chose the top seven candidates with the highest scores. The selecting official’s and the Human Resources Specialist’s affidavits are the only sworn statements from Agency officials in the record, yet they do not provide us with any substantive reason for Complainant's non-selection. Although the selecting official asserts that the selection panel’s applicant scores are the reason why Complainant was not selected for the position, the Agency failed to explain why Complainant received a score of 11 versus other applicants’ higher scores. Moreover, the Human Resources Specialist’s statement is only a generalized account of the mechanics of the selection process, and she did not play a determinative role in the selection process. Further, the Agency’s applicant table and KSA application ratings reveal the scores that the panelists gave to applicants in five rating factors, but they do not reveal the reasoning and justification for the scores. In fact, there are no affidavit statements from the selection panelists, who had first-hand knowledge of the deliberative scoring process and the specific reasons for Complainant’s score. The Agency’s failure to explain why Complainant received a score of 11 is especially noteworthy in light of Complainant’s impressive qualifications, particularly his experience as a Supervisory Transportation Security Screener; completion of the Basic Screener Training and Supervisory Screener Training Programs; experience as a Lane and Checkpoint Supervisor; training of approximately 50 employees; Bachelor of Science degree in Human Sciences; candidacy for a Master’s degree in Human Sciences/Institutional Management and Associate of Arts degree in Computer Information Sciences; and supervision of one of the selectees. We note that while an agency's burden of production is not onerous, the agency must nevertheless provide a specific, clear, and individualized explanation for a non-selection so that the complainant is provided with an opportunity to prove that the agency's explanation was a pretext for discriminatory animus. See Boston v. U.S. Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004) (agency failed to meet its burden of production by stating in two short affidavits only that complainant was “not the best qualified for the position”); Wilson v. Dep’t. of Veterans Affairs, EEOC Appeal No. 01995055 (Dec. 21, 2001) (agency’s conclusory statement that complainant was not best-qualified candidate failed to meet burden to articulate legitimate, non-discriminatory reason for non-selection and thwarted fact-finder’s ability to comparatively analyze candidates); see also EEOC v. Target Corp., 460 F.3d 946, 959 (7th Cir. 2006) (employer should have articulated qualities applicant failed to meet in order to articulate legitimate, nondiscriminatory reason so applicant would know what evidence to present to establish pretext). We find that the evidence presented by the Agency is not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for the position for which he was deemed qualified. The Agency explained the general mechanics of the selection process but failed to provide an individualized explanation for Complainant's specific score. See Koudry v. Dep’t of Educ., Request No. 0520100196 (Apr. 13, 2010) (discrimination found where agency merely explained the mechanics of selection process, provided list of candidates deemed best qualified, and summarized applications of selectee and complainant, but failed to provide statements from selecting officials explaining how complainant's qualifications were evaluated compared to selectee's qualifications). The evidence reveals that the scores were simply the selection panelists’ subjective assessments of each candidate’s qualifications in five elements. The record contains the bare numerical scores the panelists gave Complainant and the selectees in five factors, but there is no testimonial or documentary evidence that explains why the panelists scored Complainant and the selectees the way they did. Further, the scoring sheets are unsigned and undated, making it unclear whether these documents were prepared contemporaneously with the selection action, or were assembled after the fact. We have held that an agency fails to articulate a legitimate, non-discriminatory reason when it fails to provide specific information to explain why agency officials assigned their respective ratings or scores to a complainant. See, e.g., Myles v. Soc. Sec. Admin., EEOC Appeal No. 0120092511 (Feb. 10, 2011)(agency failed to meet burden of production when it merely said that complainant was not selected because Review Panel ranked him lower in scoring because this was not a specific, clear, and individualized explanation for Complainant’s non-selection); Clemente v. Dep’t of Justice, EEOC Appeal No. 0720080012 (Sept. 24, 2008) (agency failed to meet burden of production when it provided description of selection process, generally stated that selectees were more qualified than complainant, and provided no record clarification of specific qualities that made selectees better qualified than complainant.); Glomski v. U.S. Postal Serv., EEOC Appeal No. 01955157 (July 17, 1997) (agency failed to meet its burden of production because it did not provide an explanation of the review committee’s assignment of scores to complainant and the selectee). Similarly, courts have held that in hiring or promotion decisions based on scores, employers must meet the burden of producing a legitimate, non-discriminatory basis for their decision by producing evidence of the reasons for their evaluations. For instance, in Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007), the employer explained that it did not hire the plaintiff because a rating board gave the plaintiff interview scores that resulted in her ranking 29th out of 40 candidates, whereas all the selectees were given scores that ranked them in the top 11. The Court in Alvarado held that because the employer failed to point to any evidence in the summary judgment record that clarified why the plaintiff received the relatively low interview score, the employer failed to proffer a reason for the plaintiff’s non-selection that, if believed, would allow a jury to conclude that the non-selection was not the result of unlawful discrimination. Alvarado, 492 F.3d at 617. The Court in Alvarado further explained: Without some indication of the factual basis or specific reasons for Alvarado’s interview score, the score says nothing about whether her non-selection for the Rangers was the product of intentional sex discrimination. Instead, the score is at least as consistent with discriminatory intent as it is with nondiscriminatory intent because Alvarado may have well received the relatively low interview score on account of her sex. Id. Our conclusion that the Agency failed to satisfy its burden of production does not mean that scores cannot be used during the selection process. Subjective assessments of candidates may serve as a legitimate, nondiscriminatory reason for not hiring a candidate. Browning v. Sw. Research Inst., 288 Fed. Appx. 170, 176-77 (5th Cir. 2008); Joseph v. City of Dallas, 277 Fed. Appx. 436, 440-41 (5th Cir. 2008); Alvarado, 492 F.3d at 616. However, “because subjective reasons can be a pretext for discrimination, such ‘reason[s] will satisfy the employer's burden of production . . . only if the employer articulates a clear and reasonably specific basis for its subjective assessment.’” Browning, 288 Fed. Appx. at 177 (quoting Alvarado, 492 F.3d at 616). Therefore, when scores are the result of subjective evaluations, the Agency must provide some explanation for giving Complainant and the selectees particular scores. For example, in Joseph, the Fifth Circuit found that the employer met its burden of production by showing that the plaintiff received poor scores in the selection process because “he provided poor answers to the hypothetical police scenarios and seemed unable to logically process information.” Joseph, 277 Fed Appx. at 441. Likewise, the Fourth Circuit recently held that an employer met its burden of production when it explained that the plaintiff received lower scores during the selection process because she had less technical expertise than the other candidates. Harris v. Mayor and City Council of Baltimore, No. 09–1446, 2011 WL 1739994 (4th Cir. 2011). In contrast, the Agency here has not met its burden of production because it failed to offer any evidence that explains the reasoning behind its bare scores. See Jackson v. Lowndes County School District, 2010 WL 91245 (N.D. Miss. 2010) (defendant failed to meet its burden of production when it merely stated that it did not hire plaintiff because he scored lower in his interview than candidate who was hired and provided tally sheet reflecting scoring of candidates on a scale of one to five, but failed to explain reasons for scores). Therefore, the Commission finds that the Agency failed to overcome Complainant's prima facie case of race discrimination, and Complainant prevails without having to prove pretext. Chhe v. Dep’t of Housing and Urban Dev., EEOC Request No. 0720090008 (Aug. 6, 2010) (the consequence of an agency's failure to meet its burden of production under McDonnell Douglas is that the complainant, having established a prima facie case, prevails without having to make any demonstration of pretext), request for recon. den. EEOC Request No. 0520100584 (Jan. 27, 2011). As such, we find we clearly erred in our previous decision in affirming the Agency’s final order. Motion to Amend Complaint Finally, Complainant contends that the AJ failed to address his August 25, 2004, motion to amend his complaint. In his motion to amend, Complainant asked the AJ to amend his complaint to include the claim that in 2003, the Agency subjected him to discrimination3 in violation of Title VII when it failed to select him for the following positions: 1. Screening Manager, SV-1801-00/ SV-1801-H, Raleigh-Durham International Airport (RDU), under vacancy announcement TSA-03-621; 2. Screening Manager, SV-1801-00/ SV-1801-H, RDU, under vacancy number TSA-03-622; 3. Scheduling Operations Officer, SV-1801-00/ SV-1801-I, RDU, under vacancy announcement number TSA-03-675; 4. Stakeholder Liaison, SV-0301000/ SV-1801-I, RDU, under vacancy announcement number TSA-03-698; 5. Transportation Security Specialist, Pay Band H, RDU 202, under vacancy announcement 1801; 6. Transportation Security Specialist, Pay Band I, RDU 203, under vacancy announcement number 1801; 7. Transportation Security Specialist, Pay Band H, Greensboro, North Carolina Piedmont Triad Airport (GSO) 202, under vacancy announcement number 1801; and 8. Transportation Security Specialist, Pay Band I, GSO 203, under vacancy announcement 1801. There is no indication in the record that the AJ addressed Complainant’s motion to amend. According to 29 C.F.R. § 1614.106(d), “[a]fter requesting a hearing, a complainant may file a motion with the administrative judge to amend a complaint to include issues or claims like or related to those raised in the complaint.” In this case, we note that Complainant’s motion to amend did not indicate the dates on which the additional non-selections occurred, the selecting officials involved in these actions, or the protected bases on which he alleges discrimination for these actions. As such, Complainant has not shown that the claims contained in his motion to amend were like or related to those raised in his complaint. Thus, we conclude that, had the AJ considered Complainant’s motion to amend, Complainant would not have prevailed on the motion. CONCLUSION In summary, we find that our previous decision clearly erred as a matter of law in affirming the final agency order implementing the AJ’s finding of no discrimination. Thus, the Commission finds that Complainant’s request for reconsideration meets the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to GRANT the request. The decision of the Commission in Appeal No. 0120053702 and the Agency's final order are REVERSED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. The Agency must take actions consistent with this decision and the Order set forth below. ORDER Within ninety (90) days of this decision becoming final, and to the extent it has not already done so, the Agency is ORDERED to take the following remedial actions: 1. The Agency shall offer Complainant the position of Screening Manager, SV-1801-H, at Raleigh-Durham International Airport, or a substantially equivalent position, effective February 18, 2003. Complainant shall have 15 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond his control prevented a timely response. This retroactive placement shall presume Complainant has permanent employment status in the position and include all promotions and monetary remuneration attached to the position. 2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to 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 referenced in the statement entitled “Implementation of the Commission's Decision.” 3. The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable the EEOC determining the appropriate amount of damages within 150 calendar days after this decision becomes final. 4. Provide each of the individuals responsible for this selection decision (selection panelists and the selection official) with at least 16 hours of training on their responsibilities, rights, and obligations under federal equal opportunity laws and regulations. The training must pay particular attention to the laws prohibiting race discrimination and management’s duty to fully cooperate with EEO investigations. 5. Consider taking appropriate disciplinary action against the responsible management officials (selection panelists and selecting official). 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 shall ensure that in the course of conducting EEO investigations, selecting or rating officials provide an explanation for any subjective scores/ratings given to candidates when scores/ratings are a factor in selections or promotions. The Agency shall also ensure that all decision-makers involved in the selecting process fully cooperate with the EEO investigation. 7. The Agency shall ensure that it conducts proper and adequate investigations that produce an impartial and appropriate actual record that allows a fact-finder to make findings on the claims raised by the formal complaint, in accordance with 29 C.F.R. § 1614(b) and MD-110. 8. Post a notice of the finding of discrimination in accordance with the paragraph below. 9. Submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0910) The Agency is ordered to post at the Raleigh-Durham International Airport 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 (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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. 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. 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: ______________________________ Stephen Llewellyn Executive Officer Executive Secretariat November 14, 2011 Date 1 The basis for the AJ finding that a prima facie case of sex discrimination is unclear, as all of the selectees were male, and no evidence of sex-discriminatory animus was cited. 2 One African-American male was also selected. However, this does not preclude Complainant from establishing a prima facie case of race discrimination, because the remaining six selectees were Caucasian. See Connecticut v. Teal, 457 U.S. 440, 451 (1982); see also Grey v. U.S. Postal Serv., EEOC Appeal. No. 01974827 (June 20, 2000). 3 Complainant did not cite a discriminatory basis in his motion to amend. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520070124 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507