FLORIDA COOK, COMPLAINANT,
v.
HILDA L. SOLIS, SECRETARY, DEPARTMENT OF LABOR, AGENCY.

Appeal No. 0720080045
Hearing No. 440-2006-00103X
Agency No. 05-05-088

Following its June 9, 2008 final order, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. and Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. The agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the agency's final order.

BACKGROUND

At the time of the events giving rise to this complaint, complainant worked as a Supervisory Human Resources Specialist at the agency's facility in Chicago, Illinois.

Complainant filed an EEO complaint alleging that she was discriminated against on the bases of race (African-American), age (approximately 59 years old at the time of the alleged incidents), and in reprisal for prior protected EEO activity.

At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ), Complainant timely requested a hearing and the AJ held a hearing on December 19, 2006 and March 8, 2007, and issued a decision on September 18, 2007.

The AJ, in his decision, set forth that he heard testimony on the following claims:

1) whether complainant was discriminated against because of her race and/or age when the agency removed her supervisory duties in March 2005; and

2) whether complainant was discriminated against on the basis of her age and retaliation for her prior EEO activity when she was rated "minimally effective" on her 2005 performance evaluation.

The AJ found that complainant was subjected to unlawful discrimination on the basis of age with respect to claim (1).1 In addition, the AJ found that complainant was subjected to unlawful discrimination on the basis of age and in retaliation for prior EEO activity with respect to claim (2).

Regarding claim (1), the AJ found that complainant established a prima facie case of age discrimination. The AJ found that complainant is over 40 years old and thus part of a protected class. The AJ found that complainant was subjected to adverse treatment when her supervisory duties were removed. In addition, the AJ found that there was sufficient evidence in the record to establish an inference of discrimination. Specifically, the AJ noted that complainant's supervisor (S1) made age-based comments and "treated younger non-African American employees more favorabl[y]."

Regarding claim (2), with respect to the basis of reprisal, the AJ noted that complainant had engaged in protected activity as early as March 8, 2005. The AJ further found that complainant established that she was subjected to adverse treatment when she received a minimally satisfactory performance evaluation. In addition, the AJ found that there was nexus between the protected activity and the adverse treatment because complainant received a poor evaluation just a few months after complainant complained about discriminatory treatment.

The AJ ordered the following remedies:

1) Complainant is entitled to $5,000 in compensatory damages.

2) Complainant's employment records should reflect that she received a "highly effective" rating on her 2005 performance evaluation. Complainant is entitled to all benefits that should have been received by a person who achieved a highly effective rating on his/her performance evaluation without regard to age or prior EEO activity.

3) Complainant's title should reflect that she is a Supervisory Human Resources Specialist or some other mutually agreed upon title. She is entitled to all the benefits that should be received by a Supervisory Human Resources Specialist without respect to age and/or prior EEO activity. Complainant's employment records shall reflect that at all times she served as a Supervisory Human Resources Specialist or some other mutually agreed upon title.

4) Complainant is awarded $39,742.50 in attorney's fees.2 

The agency subsequently issued a final order rejecting the AJ's finding that complainant proved that she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, the agency asserts that the AJ's finding of discrimination is improper. Specifically, the agency asserts that the AJ made errors with respect to liability as well as the relief awarded to complainant. The agency asserts that there is not substantial evidence in the record to support the AJ's finding of discrimination.3 Regarding claim (1), the reduction in complainant's supervisory duties, the agency asserts that it articulated legitimate, nondiscriminatory reasons for its actions. The agency states that in 2005, the conversion to the National Finance Center (NFC) had been completed and that complainant's supervisor (S1) moved two payroll technicians under complainant's supervision to the supervision of the Chief of the Employment Branch (P1). The agency asserted that S1 stated that he wanted to cross train the payroll technicians so that they could handle human resource (HR) as well as payroll issues. In addition, the agency asserted that S1 stated that he wanted to create a separate branch within HR that would be devoted to processing separations, including retirement, due to his anticipation of a greater retirement workload and [complainant's] expertise in retirement processing."

The agency asserts that the AJ's finding of pretext is not supported by substantial evidence. The agency states that "[S1] consistently testified that he anticipated a greater retirement workload because the agency expected to be swamped with retirements over the course of the next five to seven years largely because the agency's employee population had aged considerably."The agency further asserts that the AJ erroneously concluded that S1 made age-based comments that support an inference of discrimination. Specifically, the agency states that "to the extent [S1] did directly inquire about [complainant's] retirement eligibility, the inquiries were made for the purposes of succession planning and thus were entirely reasonable. Although the AJ found that [S1] never informed [complainant] that his inquiries were related to succession planning, that fact alone is insufficient to show the inquiries manifest age bias."The agency further asserts that the AJ erroneously concluded that P1 was similarly situated to complainant for purposes of comparing how they were treated differently by S1. The agency notes that while both complainant and P1 reported to S1 they had different job descriptions and responsibilities.

Regarding claim (2), complainant's 2005 performance evaluation, the agency asserts that it articulated legitimate, nondiscriminatory reasons for complainant's rating. Specifically, the agency asserts that S1 stated that (1) complainant failed to fulfill her supervisory responsibilities when did she not write and produce performance standards for two employees under her supervision and she failed to train a supervisee; (2) complainant failed to complete work on Individual Retirement Records; and (3) complainant failed to meet the synergy standard of the performance evaluation. With respect to the basis of retaliation for claim (2), the agency asserts that complainant failed to establish that a nexus exists between her protected activity and her performance rating. Specifically, the agency asserts that "the AJ concluded that [complainant] demonstrated a nexus between her protected activity and [her poor performance evaluation]. However, the AJ fails to address testimony that [S1] forewarned [complainant] in October 2004 and March 2005 regarding his dissatisfaction with aspects of [complainant's] work.

With respect to the AJ's award of relief, the agency asserts that "attorney's fees for administrative work and compensatory damages are prohibited with respect to [the first] claim because she prevailed on it only under the ADEA, and those forms of relief are not available under that statute. Accordingly, even if the AJ's discrimination and retaliation findings were to be sustained, the Commission should reverse the relief award so that compensatory damages and attorney's fees are awarded solely for harm and attorney work related to [complainant's] retaliation claim, on which she prevailed under both Title VII and the ADEA."With respect to compensatory damages and complainant's retaliation claim for her 2005 performance evaluation, the agency states that "the AJ made no attempt to distinguish between harm caused by the supposedly age-based reduction in her supervisory duties, for which no compensatory damages could be awarded, and the harm caused by the minimally satisfactory performance appraisal. Rather, the AJ awarded compensatory damages because [complainant] suffered stress and anxiety as a result of the agency's 'actions."'

The agency further asserts that the AJ improperly ordered the agency to adjust her performance rating to a "highly effective."4 Specifically, the agency states that "even assuming arguendo that some discrimination infected the agency's action in according [complainant] a 'minimally satisfactory' rating, the AJ provided no basis for concluding that her rating would have been highly effective in the absence of discrimination, and nothing in the record justifies such a conclusion."

The agency asserts that the AJ improperly ordered the agency to change complainant's job title to a Supervisory Human Resources Specialist. The agency states that S1 testified that titles are determined by classification standards involving criteria that have to be fulfilled by complainant's job duties and the limited amount of supervision she performed did not justify using the term "supervisory" in her title.

In response, complainant, through her attorney, asserts that the AJ's decision should be affirmed. With respect to the basis of race, complainant's attorney states that it is clear from the AJ's decision that while the AJ did not make a specific finding on the race claim, complainant did prevail on this claim. Complainant's attorney further asserts that "[w]hile the agency argues that complainant should only have been awarded the portion of her legal fees that was based on her prior race and her retaliation claim, it never filed any objection to complainant's fee petition until after the AJ made his final decision. Consequently, the agency waived any argument as to the amount of the legal fees awarded."Complainant's attorney further asserts that there is substantial evidence in the record that complainant established that the agency's articulated reasons for its actions were pretext for discrimination and/or retaliation.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."29 U.S.C. § 623(a)(1). When a complainant alleges that he or she has been disparately treated by the employing agency as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision."Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993))."That is, [complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome."Id.

To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Claim (1)-Reduction in Complainant's Supervisory Duties

The record reflects that complainant established a prima facie case of age discrimination. Complainant was approximately 59 years old at the time of the alleged incident. Complainant's supervisory duties were reduced and her position title was changed from Supervisory Human Resources Specialist to Human Resources Specialist.5 In addition, the record reflects that S1 made various age-based comments. Complainant testified that S1 made various statements with respect to younger employees. For example, complainant testified that S1 stated that "younger people are coming in and that they are better with computers."Hearing Transcript (HT) at 83. Complainant further asserted that S1 stated that "young people are taking over and they're the best."HT at 84. In addition, complainant testified S1 asked her numerous times when she planned on retiring. HT at 78-81. Complainant testified that when S1 inquired as to her retirement plans, he never mentioned that he was seeking this information for succession planning or staffing purposes. HT at 82. While the agency argues that these comments are insufficient to establish an inference of age discrimination, we disagree when considering these comments in their totality.

The record reflects that the agency articulated a legitimate, nondiscriminatory reason for its action. Specifically, S1 testified that he was removing complainant's supervisory duties to streamline the benefits processing function into the staffing branch and complainant could focus on providing retirement information to eligible employees.

We find that there is substantial evidence in the record that complainant established that the agency's articulated reasons for its action was pretext for age discrimination. The record reflects, as the AJ noted in his decision, that the agency's articulated reasons for reducing complainant's supervisory duties did not directly comport with the information they were providing to employees. One employee, who was removed from complainant's supervision, testified that she was told that she was being removed from complainant's supervision because complainant had too many duties. HT at 152-53. In addition, complainant testified that S1 simply told her that he was reassigning her supervisory duties because that is what he wanted. HT at 24. Furthermore, an employee at the hearing testified that S1 stated on numerous occasions his intent to replace complainant with another employee, who was in her 20s. HT at 180-83.

In response to the agency's appeal, complainant's attorney asserts that the AJ also found race discrimination with respect to this claim. A review of the AJ's decision reflects that he did not expressly find race discrimination with respect to this claim. Moreover, upon review of the record, we do not find that complainant established, by a preponderance of evidence, that she was subjected to race discrimination with respect to this claim.

We note that the AJ in awarding complainant attorney's fees and compensatory damages took into account the agency's actions set forth in both claims (1) and (2). However, neither attorney's fees nor compensatory damages are available under the ADEA. See Tellez v. Department of the Army, EEOC Request No. 05A41133 (March 18, 2005). Therefore, since complainant was only successful with her age claim for claim (1), she is not entitled to attorney's fees or compensatory damages with respect to this claim. We will address these matters further in the "Remedies" section.

Claim (2)-2005 Performance Appraisal Rating

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).

There is substantial evidence in the record that complainant established a prima facie case of retaliation with respect to claim (2). Complainant engaged in prior protected activity when she initiated the EEO process with respect to claim (1). S1 was aware of complainant's prior protected activity when he was contacted by the agency's EEO office with respect to claim (1) in April 2005. Complainant subsequently received a "minimally effective" on her 2005 performance evaluation. There is a nexus between the protected activity and the 2005 performance evaluation rating. The record reflects that the EEO process was ongoing with respect to claim (1) when S1 rated complainant minimally effective in November 2005.6 

The agency articulated legitimate, nondiscriminatory reasons for complainant's performance rating. S1 testified that he gave complainant a rating of minimally satisfactory for various reasons including complainant's failure to provide performance standards for two employees and failure to train a particular employee (E1). HT at 293. We find that there is substantial evidence in the record that complainant established, by the preponderance, of the evidence, that the agency's articulated reasons for its actions were pretext for retaliation. Complainant testified that she prepared the performance standards for the two employees in January 2005.7 HT at 410. Complainant further testified that E1 did not work with her fifty percent of the time as claimed by the agency but only five to ten percent of the time. HT at 402. We further note that S1 conducted complainant's performance evaluation with his office door open; whereas, he normally conducted performance evaluations with his door closed.8 HT at 175. While the agency asserts that S1 expressed concern to complainant with respect to her performance in March 2005, prior to her protected activity, complainant testified that S1 only discussed with her the performance standards at that time and not her performance. HT at 93.

Remedies
The agency raises numerous arguments with respect to the AJ's remedies which we address below.

2005 Performance Rating

While the agency asserts that the AJ improperly ordered complainant's 2005 performance rating to be adjusted to "highly effective," we disagree. The record reflects, as the AJ noted in his decision, that complainant's performance ratings in 2003 and 2004, prior to the 2005 discriminatory performance rating, were "highly effective." Based on these circumstances, we find that a "highly effective" rating for 2005 is proper.

Position Title

We find that the AJ properly ordered the agency to place complainant in a Supervisory Human Resources Specialist position. As set forth above, there is substantial evidence in the record to support the AJ's finding that S1 stripped complainant of her supervisory responsibilities which ultimately resulted in her position being reclassified as a Human Resources Specialist position. Based on these circumstances, complainant should be placed in a Supervisory Human Resources Specialist position.

Compensatory Damages

The AJ, in his decision, awarded complainant $5,000.00 in compensatory damages. As set forth above, complainant is not entitled to compensatory damages with respect to claim (1) because such damages are not available under the ADEA. At the hearing, complainant testified that the agency's actions impacted her sleep and that she sought EAP counseling. HT at 97-98. However, we agree with the agency that we are unable to determine from the record what specific harm complainant suffered as a result of the agency's actions in claim (2), the 2005 performance appraisal rating. Thus, we remand the issue of compensatory damages to the agency as set forth in the Order below.

Attorney's Fees

The AJ, in a decision dated April 28, 2008, awarded complainant $39,742.50 in attorney's fees, the full amount requested by complainant's attorney. As set forth above, complainant is not entitled to attorney's fees for claim (1) since complainant was only successful under the ADEA. Complainant is entitled to attorney's fees for claim (2), since complainant established that she was subjected to retaliation and her prior protected activity was not only brought under the ADEA but Title VII. To account for the fact that complainant should only be given attorney's fees for one of her claims, we find that the award of attorney's fees should be reduced by fifty percent. Therefore, we find that complainant is entitled to $19,871.25 in attorney's fees.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the agency's final order finding no discrimination. However, we modify the AJ's remedies as set forth in the ORDER below.

ORDER

Within sixty (60) calendar days from the date this decision becomes final, the agency is hereby ORDERED to take the following remedial actions:

1. All agency records shall reflect that complainant received a "highly effective" rating on her 2005 performance evaluation. Complainant is entitled to all benefits that she should have received by a person who achieved a "highly effective" rating on his/her performance evaluation.

2. Complainant's title should reflect that she is a Supervisory Human Resources Specialist or some other mutually agreed upon title. She is entitled to all the benefits that should be received by a Supervisory Human Resources Specialist. Complainant's employment records shall reflect that at all times she served as a Supervisory Human Resources Specialist or some other mutually agreed upon title.

3. The issue of compensatory damages with respect to claim (2) is remanded to the agency. The agency shall conduct a supplemental investigation of complainant's entitlement to compensatory damages. Within sixty (60) days of the completion of the supplemental investigation, the agency shall issue a final agency decision pursuant to 29 C.F.R. § 1614.110(b), addressing the issue of compensatory damages.

4. The agency shall pay complainant $19,871.25 in attorney's fees.

5. The agency shall provide eight (8) hours of EEO training to S1 with a focus on age discrimination and retaliation.

6. The agency shall consider taking disciplinary action against S1. The agency shall report its decision in its compliance report to the Commission. 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 take disciplinary action.

7. The agency shall post copies of the attached notice in accordance with the statement entitled "Posting Order."

8. 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 the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Chicago, Illinois 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, D.C. 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. See29 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. See29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or

2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, D.C. 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period, See29 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. See29 C.F.R. § 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)

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 (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

February 22, 2010

1. The AJ did not expressly make a determination on the basis of race with respect to claim (1).

2. The AJ awarded the attorney's fees in a separate decision dated April 28, 2008.

3. The agency in its brief notes that "the AJ's liability findings are premised solely on age, not race discrimination, and reprisal. The reprisal ruling, however, is based on Title VII as well as the ADEA, since the underlying protected activity--[complainant's] first complaint about the reduction of her supervisory duties-contained allegations of both race discrimination under Title VII and age discrimination under the ADEA. Hence, reprisal for filing that first complaint would be a violation of both of those statutes."

4. The record reflects that the agency changed complainant's rating in the computer system from a "minimally satisfactory" to an "effective" in order for complainant to qualify for a step increase.

5. The record reflects that complainant's grade level and pay did not change.

6. The record reflects that S1 was initially contacted by the agency's EEO office in April 2005 with respect to claim (1) and was sent an EEO affidavit to complete in September 2005.

7. Complainant further stated that S1 subsequently reassigned these two employees to a new supervisor and that they then required new performance standards.

8. Because we find that complainant established retaliation with respect to claim (2), we need not address whether complainant was also subjected to age discrimination regarding claim (2), because this would not alter complainant's remedies.