Alexander Koudry, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency. Request No. 0520100196 Appeal No. 0120080343 Agency No. ED20056900 DENIAL The agency timely requested reconsideration of the decision in Alexander Koudry v. Department of Education, EEOC Appeal No. 0120080343 (November 2, 2009). 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). The record reveals that on September 6, 2005, complainant filed an EEO complaint alleging that he was discriminated against on the basis of disability (Chron's Disease) and in reprisal for prior protected EEO activity when: 1. On May 25, 2005, complainant received a "successful" rather than "highly successful" or "outstanding" performance evaluation for the performance period of May 1, 2004 to April 30, 2005; and 2. On April 13, 2005, complainant was not selected for the position of Supervisory Management and Program Analyst, GS-15, advertised under Vacancy Announcement OCIO-2005-0030. At the conclusion of the investigation of the complaint, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the agency found that complainant was not subjected to unlawful discrimination. Complainant appealed the final agency decision to the agency. In a decision dated November 2, 2009, the Commission determined that complainant established a prima facie case of disability discrimination and reprisal. The Commission also determined that the agency failed to set forth, with sufficient clarity, the reasons for complainant's performance evaluation rating of "successful" such that complainant had a full and fair opportunity to demonstrate that the agency's reason was pretextual. Alexander Koudry v. Department of Education, EEOC Appeal No. 0120080343. The Commission further determined that the agency failed to provide a sufficient articulation of its reasons for rating complainant "successful" because the first-line supervisor's investigative affidavit merely provided a general description of the evaluation process; broadly stated that complainant performed only at the "successful" level; and, provided no specific information explaining why he assigned the "successful" rating to complainant. The Commission also concluded that the agency did not overcome complainant's prima facie case of discrimination here because it did not clearly set forth its reasons for rating complainant "successful." With respect to claim 2, the Commission found that the agency failed to overcome complainant's prima facie case of discrimination because the record did not contain any rating or voting sheets, testimonial evidence, notes taken contemporaneous with the interviews, sworn declarations, discovery responses, deposition testimony, or signed written statements of any person connected with the selection process that explained the rankings of the candidates and why the selectee was ultimately chosen but complainant was not selected. The Commission noted that an unsigned and undated document in the record that summarized the applications of the selectee and complainant and an affidavit from a supervisor who was not involved in the selection process were not sufficient to meet the agency's burden of production. Consequently, the Commission ordered the agency to revise complainant's EDPAS performance evaluation for the period May 1, 2004 to April 30, 2005 to reflect an overall "outstanding" performance rating; give an unconditional written offer to complainant to place him in a GS-15 Supervisory Management and Program Analyst position, or substantially equivalent position; determine the appropriate amount of back pay and benefits complainant is entitled to receive; provide Rehabilitation Act training to the responsible management officials; consider disciplining the responsible management officials; and, conduct a supplemental investigation to determine complainant's entitlement to compensatory damages. In its request for reconsideration, the agency maintains that the Commission should remand this matter so that it can supplement the record with further evidence supporting its actions. The agency further maintains that the record contains more evidence in support of the agency's decision not to select complainant than the documents referenced by the Commission in our previous decision, including the applications of the selectee and complainant and the best qualified list. Additionally, the agency contends that it is "troubling" that the Commission presumed that it discriminated against complainant when it gave him a "fully successful" rating because "the supervisor's affidavit does not forcefully oppose all of the complainant's allegations." The agency further argues that the constraints of conducting an investigation without a hearing before an AJ should mitigate the Commission's view of the record in this case. Upon review, we note that the agency does not challenge our conclusion that complainant established a prima facie case of reprisal and disability discrimination. The agency maintains that its decision to not select complainant for the position of Supervisory Management and Program Analyst is supported by the inclusion in the record of the best qualified list and the complainant's and selectee's applications. However, we note that while the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for a non-selection so that complainant is provided with an opportunity to prove that the agency's explanation was a pretext for discriminatory animus. See Carolyn V. Boston v. United States Postal Service, EEOC Appeal No. 0120042074 (May 26, 2004) (Commission held that the agency failed to meet its burden of production by merely stating in two short affidavits that the selectee was "not the best qualified for the position"); see also EEOC v. Target Corp, 460 F.3d 946, 959 (7th Cir. 2006) (employer should have articulated what qualities applicant failed to meet in order to articulate a legitimate, nondiscriminatory reason such that the applicant knows what evidence to present in order to establish pretext). The job applications and best qualified list do not provide a specific, individualized explanation why the agency did not select complainant or why it chose the selectee for the position, providing us with no insight on how complainant's qualifications were evaluated in comparison to the selectee's qualifications for the position. Likewise, the agency only explained the general mechanics of the performance evaluation process but failed to provide an individualized explanation for complainant's specific rating. The agency attributes its failure to sufficiently explain its actions on the lack of a hearing before an AJ, but the agency is charged with the obligation to develop an adequate investigative record whether or not the matter will be heard before an AJ. 29 C.F.R. § 1614.108. Thus, the agency failed to set forth with sufficient clarity a legitimate reason for its actions, which deprived complainant of a full and fair opportunity to demonstrate that the agency's explanations are a pretext for unlawful discrimination. See Parker v. United States Postal Service, EEOC Request No. 05900110 (April 30, 1990): Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997). The agency has therefore failed to overcome complainant's prima facie case of reprisal and disability discrimination. See Prevo v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01972832 (March 10, 2000). Contrary to the agency's assertion that we must now remand this matter to give the agency the opportunity to supplement the record, the Commission has often found discrimination outright when agencies failed to sufficiently explain its actions. See Brenda Yee v. Department of the Interior, EEOC Appeal No. 0120061381 (July 11, 2008); Ken Leung v. United States Postal Service, EEOC Appeal No. 0120063435 (June 8, 2007); Robert E. Johnson v. Department of Homeland Security, EEOC Appeal No. 0120072888 (December 18, 2008); Emma Blathers v. Department of Veterans Affairs, EEOC Appeal No. 0120073432 (December 10, 2009). Consequently, we conclude that our previous decision properly found that complainant was subjected to reprisal and disability discrimination. Accordingly, after reconsidering the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120080343 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The agency shall comply with the Order as set forth below. ORDER To the extent that the agency has not done so, the agency is ordered to take the following actions: A. The agency shall revise complainant's EDPAS performance evaluation for the period May 1, 2004 to April 30, 2005 to reflect an overall performance rating of "Outstanding." B. Within sixty (60) calendar days of the date this decision becomes final, the agency shall give an unconditional written offer to complainant of placement in the permanent position of Supervisory Management and Program Analyst (GS-343-15) in the Washington, D.C. office or a substantially equivalent position. Complainant shall have 15 days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless complainant can show that circumstances beyond his control prevented a response within the time limit. If the offer is accepted, appointment shall be retroactive to the date the applicant would have been hired. If no substantially equivalent position is available, then the agency shall pay complainant front pay within sixty days of the date it determined that no position was available. Front pay shall be awarded until complainant has been placed in the appropriate position as stated above. If there is a dispute regarding the exact amount of front pay, the agency shall issue a check to the complainant for the undisputed amount within sixty 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." C. The agency shall determine the appropriate amount, from the time he should have been selected, of back pay, with interest, and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) days after the date this decision becomes final. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision;" D. The agency shall provide training to the responsible agency officials regarding their obligations under the Rehabilitation Act within 90 days of the date this decision becomes final. If any of the responsible agency officials are no longer employees of the agency, then the agency shall furnish documentation of their departure date(s). E. The agency shall consider taking appropriate disciplinary action against the responsible agency officials within 90 days of the date this decision becomes final. The agency shall report its decision to the Compliance Officer, referenced herein. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible agency officials have left the agency's employment, then the agency shall furnish documentation of their departure date(s). F. The agency shall undertake a supplemental investigation to determine complainant's entitlement to compensatory damages under the Rehabilitation Act. The agency shall give complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from complainant in support of his request for compensatory damages within 45 days of the date complainant receives the agency's notice. No later than 90 days after the date that this decision becomes final, the agency shall issue a final decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. G. The agency shall provide a report of its compliance with Paragraphs A to F of this Order to the Compliance Officer as referenced below. Copies must be sent to complainant and his representative. POSTING ORDER (G0900) The agency is ordered to post at its Washington, D.C. 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 (K1208) 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 (P0408) 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 (Z1008) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations ______4/13/10____________ Date 2 0520100196 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0520100196