Asonia N. Parker, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency. Appeal No. 0720080062 Hearing No. 430-2008-00054X Agency No. 07-62793-01594 DECISION Following its September 11, 2008 final order, the agency filed an appeal with this Commission requesting that we affirm its rejection of the discrimination finding of an EEOC Administrative Judge's (AJ), in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 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. Complainant, an Industrial Property Management Specialist, GS-1103-11, at the agency's Supervisor of Shipbuilding (SUPSHIP), Conversion and Repair, in Newport News, Virginia, filed a formal EEO complaint on June 13, 2007. Therein, complainant claimed that she was discriminated against on the basis of race (African-American) when: on April 29, 2007, she was not selected for the position of Support Services Supervisor, GS-0347-07 or 09, with known promotion potential to a GS-0301-11, under Management Identification of Candidates. Following the investigation, complainant was provided with a copy of the report of investigation and requested a hearing before an Administrative Judge (AJ). Following a hearing on July 16, 2008, the AJ issued a decision on July 31, 2008, finding discrimination concerning complainant's non-selection. In her July 16, 2008 decision, the AJ concluded that the evidence supported a determination that complainant was discriminated against based on her race when she was not selected for the position of Support Services Supervisor, GS-0347-07/09. The AJ found that complainant's qualifications were observably superior to those of the selectee. Specifically, the AJ noted that complainant had several years of experience at the GS-11 level with the agency and would have been able to work independently, while the selectee was only a GS-7 at the time of the selection. The AJ further noted that while the subject position was originally a GS-11 position, the agency's witnesses were unable to explain why it was announced as a career ladder position. The AJ found several irregularities in the selection process itself which suggested discrimination. The AJ noted even though the panelists of the interview panel all signed a document which stated that they had reviewed the entire application package and affixed an appropriate score based on the entire submission, they only scored the candidates based on their interviews. The AJ found troubling that either the selectee or the chair of the interview panel (C1) misrepresented selectee's experience during the selectee's interview. Further, the AJ noted several scoring irregularities by the panelists. For instance, the AJ noted the scoring of complainant and selectee on the first question (concerning applying one's leadership, supervisory and EEO experiences) one panelist (P1) gave selectee a score of 9 based on the misrepresentation that he had served in the position in an acting capacity for two and a half months. The AJ noted P1 gave complainant a score of 5 for the same question. The AJ noted although she did not have any supervisory experience, complainant explained to the panel her leadership in various committees on which she had served, including the EEO committee and Toastmasters; her experience as union steward for five years; and the fact that she owed two businesses. The AJ noted that in her notes, P1 indicated that the selectee "supports EEO completely" and that complainant "did not state EEO policies." During her testimony, P1 admitted that the selectee did not state EEO policies either. P1 claimed that she thought she gave complainant and selectee the same scores on the EEO element and that the selectee went ahead of complainant with his leadership and supervisory experience. Furthermore, the AJ found it was clear from her notes that P1 downgraded complainant for not stating EEO policies while she did not do the same for the selectee, and even if she did not, she did not give complainant appropriate credit for the EEO element as she had served on EEO committees and the selectee had not. The AJ also found the selecting official and C1's scoring of the candidates suspicious. For instance, the AJ noted that the fourth interview question "concerned an employee who calls in sick and the frequent sick calls are impacting the ability to complete the work as planned and are causing churn for the employee's co-workers and asked the candidates what they would do." C1 initially gave the selectee a score of 9, then downgraded it to 8, for his response wherein he indicated he would talk with the employee, work out a solution and fix the problem. The AJ found no indication that C1 indicated, during his examination at the fact finding conference, that the selectee identified what solutions would be implemented, or how he would fix the problem. The AJ found that complainant received a score of 5 for responding that she would monitor work assignments, partner with the employee to keep the work going and consult a union handbook in regard to guidance concerning leave restrictions. Similarly, the AJ noted that question 5 concerned an employee situation which arises on a weekend, C1 initially gave the selectee a score of 10, downgraded to 8, for responding that he would call to see who could or would come in, and that he would do it himself if necessary. The AJ noted that complainant, on the other hand, received a score of 5 for saying that she would come in and handle it and call employees at home for assistance. The AJ determined that there was little or no distinction between the answers provided, except that complainant was willing to take on the responsibility herself and then call employees for assistance if needed while the selectee would call employees first and come in to work only if it was required. After a review of the testimony, the AJ awarded complainant $25,000.00 in non-pecuniary compensatory damages to compensate her for the discrimination. Specifically, the AJ found that complainant suffered emotional pain and suffering, humiliation, difficulty sleeping, weight gain, and loss of enjoyment of life as a result of her non-selection. As for the remaining remedies, the AJ ordered the agency to appoint complainant to the Supervisory Administrative Services Specialist, GS-0301-11 position, retroactive to April 29, 2007;1 pay attorney's fees and costs in the amount of $12,331.55; and post a notice on all employee bulletin boards stating that it was found in violation of Title VII. The Commission discerns no basis to disturb the AJ's findings. We find that the findings of fact are supported by substantial evidence, and that the AJ correctly applied the appropriate regulations, policies and laws. Moreover, we further find that given the specific facts in this case, the AJ's remedial award is appropriate. We note that that in regard to attorney's fees and costs, the record reflects that complainant's attorney submitted a fee petition dated July 22, 2008.2 Therein, the attorney requested $12,331.55 in attorney's fees and costs (his hourly rate of $350.00 plus $250.00/$100.00 per hour for legal assistant work and $94.05 in legal costs). The record reflects that the agency did not respond to complainant's verified statement of costs and attorney's fees. Furthermore, we note that the agency, in its brief, did not object to the AJ's awarding complainant's attorney $12,331.55 in attorney's fees and costs. Thus, we concur that the agency shall pay the amount of $12,331.55 in attorney's fees and costs. We REVERSE the agency's final order, and REMAND this matter to the agency to take remedial action in accordance with this decision and the ORDER below. ORDER The agency is ordered to take the following remedial action: 1. Within sixty (60) calendar days of the date this decision becomes final, the agency shall appoint complainant to the Supervisory Administrative Services Specialist, GS-0301-11 position, retroactive to April 29, 2007. 2. Within sixty (60) calendar days of the date this decision becomes final, the agency shall tender to complainant $25,000.00 in non-pecuniary compensatory damages. 3. Within sixty (60) calendar days of the date this decision becomes final, the agency shall tender to complainant's attorney $12,331.55 in attorney's fees and costs. 4. The agency shall post a notice in accordance with the paragraph below. The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. 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. POSTING ORDER (G0900) The agency is ordered to post at its SURSHIP in Newport News, Virginia, 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. 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. 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. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408) 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. If you file a request to reconsider and also file a civil action, 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 26, 2009 __________________ Date 1 In her decision, the AJ determined that complainant was not entitled to any back pay as the position is a lateral move for her. 2 The record does not contain a copy of the fee petition dated July 22, 2008. ?? ?? ?? ?? 2 0720080062 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 6 0720080062 7 0720080062