Pamela Watson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency. Appeal No. 0720090029 Hearing No. 531200700138X Agency No. HS06ICE004123 DECISION Following its March 2, 2009, 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Specifically, the Agency alleges that the AJ substituted her business judgment for that of the Agency in finding that Complainant was discriminated against. For the following reasons, the Commission REVERSES the Agency's final order. ISSUE PRESENTED Whether the Agency established that the AJ erred in finding that Complainant was subjected to unlawful discrimination based on her sex as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Immigration Enforcement Agent, GS-9, at the Agency's Maryland Detention and Removal Field Office in Salisbury, Maryland. On December 20, 2005, the Agency issued Vacancy Announcement LAG-DRO-103818-LS-04 for a Deportation Officer, GS-9/12. The duties for this position were to, among other things, assist attorneys with deportation cases, work with law enforcement officials to apprehend illegal aliens, and assist aliens in deportation proceedings. Complainant applied for this position and was placed on the merit certificate for promotion to the GS-11 level. A panel, consisting of two male Agency employees (P1) and (P2), was convened to interview the applicants. The panel interviewed 13 candidates, including Complainant, for two positions at the Salisbury Maryland location. Complainant was not selected by the panel. Instead, the panel selected two male candidates because they scored highest on their interviews. The first selectee (S1) received a score of 35 from both panel members. The second selectee (S2) received scores of 33 and 34 from the panel. Complainant received scores of 29 and 28 from the panel. However, the record indicates that the panel initially gave Complainant scores of 34 and 38, which were later lowered to 29 and 28. The selecting official (SO) approved the panel's recommendation and hired the two male candidates for the Salisbury positions. The panel indicated that Complainant was not selected because she did not score high enough on her interviews. The panel indicated that scores were constantly adjusted because later applicants gave better interviews. However, Complainant was the only applicant whose scores were altered and lowered. The panel also gave Complainant a score of zero for two interview questions. One of these questions involved the candidates' fugitive operations experience. In response to the question, Complainant, among other things, indicated that she had done several operations in Norfolk, Virginia, including one where she assisted U.S. Marshals in removing 51 aliens. On June 2, 2008, the Agency posted Vacancy Announcement LAG-DRO-114268-SB-220, Supervisory Immigration Enforcement Agent, GS-11. The duties of this position, were among other things, to investigate and assist with the apprehension and deportation of illegal aliens. Complainant applied for the position and was interviewed by another two person panel. The panel consisted of P1 again and a female employee (P3). Five candidates were interviewed. The interview consisted of nine questions. For five of the questions, Complainant's scores were considerably lower even though her answers were similar to that of the selectees. Two male candidates again were given the highest scores by the panel and were recommended to the SO for selection. On November 8, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when: 1) she was not selected for the position of Deportation Officer, GS-9/12, advertised under Vacancy Announcement LAG-DRO-103818-LS-04; and 2) she was not selected for the position of Supervisory Immigration Enforcement Officer, GS-11, advertised under Vacancy Announcement LAG-DRO-114268-SB-220. At the conclusion of the investigation, the Agency provided Complainant 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 March 19, 2008, and issued a decision on October 20, 2008. Specifically, as to the Deportation Position, the AJ found that Complainant had established a prima facie case of discrimination based on her sex. Next, the AJ found that the Agency established legitimate nondiscriminatory reasons for its actions. In particular, the AJ found that the Agency indicated that S1 and S2 were selected because they ranked highest based on their interview scores. Specifically, they were ranked highest because during the interview they articulated, among other things, initiative and teamwork. However, the AJ found that Complainant showed that the Agency's nondiscriminatory reasons were pretext for discrimination. In this regard, the AJ noted that Complainant would have been recommended to the SO, if it were not for the fact that the panel later changed her interview scores. The AJ noted that Complainant's initial interview scores were both higher than S1 and S2. The Agency said the interview scores were constantly adjusted; however, the AJ could find no evidence that other applicants had their scores altered. Also, the AJ found Agency testimony to be conflicting as to when and why the scores were changed. Ultimately, the AJ determined that Complainant's scores were intentionally changed so the Agency could recommend two males for the Deportation position. Regarding the Supervisory Immigration Enforcement Agent Position, upon finding that Complainant established a prima facie case of discrimination, the AJ noted that the Agency established legitimate nondiscriminatory reasons for its actions. Specifically, the Agency recommended the two candidates who had the highest interview scores. In this regard, P3 indicated that she recommended the two she thought were the best qualified and showed the skills and qualifications for which she was looking. P1 indicated that one of the selectees showed strong leadership skills. As with the other position, the AJ found that Complainant showed that the Agency's nondiscriminatory reasons were pretext for discrimination. The AJ found that Complainant received substantially lower scores even though her answers to many of the questions were either identical or superior to the selectees' answers. In regards to one question, the AJ noted that Complainant received a score of three while the selectee received a score of seven. In this regard, the AJ noted that both the selectee's response and Complainant's response both mentioned discipline in their answers to the question. As such, as the AJ noted, it was not clear why Complainant received a substantially lower score in that instance and in other instances. Therefore, the AJ found that the Agency's nondiscriminatory reasons were pretext for discrimination. In terms of equitable relief, the AJ ordered Complainant to be placed in her choice of positions as either a Deportation Officer, GS-11, retroactive to May 29, 2006, or a Supervisory Immigration Enforcement Agent, GS-11, retroactive to August 6, 2006, with back pay and interest computed pursuant to 5 C.F.R. § 550.805, including pay increases and other benefits she would have received but for the discrimination. The AJ also ordered the Agency to post a notice regarding the finding of discrimination and the Agency's obligation to comply with EEO law. Also, the AJ awarded Complainant $15,000 in non-pecuniary, compensatory damages. The AJ observed that Complainant suffered stress, frustration, embarrassment, and depression when she was not selected for the positions. As a result, Complainant indicated that her blood pressure went up and she suffered from headaches. Additionally, the AJ found that the emotional strain negatively affected her home life, as Complainant's son testified that she would come home and go straight to her bedroom by herself and close the door. Complainant's son testified that she previously had made dinner when she came home. The AJ also awarded attorney's fees in the amount of $24,141.25 and $282.73 in costs.1 The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On Appeal, the Agency contends that Complainant failed to establish that her nonselections were the result of sex discrimination. As for the Deportation Officer Position, the Agency contends that the selectees' were chosen because they had superior interviews and answered the questions with innovative responses. The Agency also contends that, while it is clear that Complainant's interview scores were changed, there was no evidence that her scores were changed for discriminatory reasons. The Agency noted that both P1 and P2 credibly testified that they constantly adjusted scores throughout the interview process because later candidates interviewed better. The Agency also contends that the AJ substituted her judgment for that of the managers evaluating the Complainant. In this regard, the Agency noted that employers have broad discretion to carry out personnel decisions and should not be second guessed absent evidence of unlawful motivation. Regarding the Supervisory Immigration Enforcement Agent position, the Agency contends that the selectees were selected because they both exhibited leadership skills. In this regard, the Agency noted that an employer has greater discretion when filling management or specialized positions. The Agency also contends that the AJ substituted her judgment for that of the managers evaluating Complainant. The Agency further contends that Complainant cannot show that her qualifications are "plainly superior" to the selectees. In response to the Agency's appeal, Complainant contends that her initial scores for the Deportation position showed that her performance during the interview was better than both S1 and S2. Complainant contends that her scores were intentionally lowered and altered to fall behind S1 and S2. Further, Complainant contends that the Agency was not able to provide credible testimony as to when and why her scores were changed. Complainant contends that Agency testimony that scores were constantly being changed because later candidates interviewed better was not credible. Moreover, Complainant contends that no other candidate, besides her, had their scores changed. In regards to the Supervisory Immigration Enforcement position, Complainant contends that she was not fairly scored during the interview. Complainant contends that she constantly received lower scores than the male selectees even though her answers to the interview questions were similar. Complainant further contends that the Agency was not able to provide credible testimony as to why there was such a disparity in points given for similar answers. 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, at § VI.B. (November 9, 1999). We concur with the AJ's finding that Complainant proffered evidence which establishes that the Agency's articulated reasons for not selecting her for the positions at issue was more likely than not a pretext for discrimination on the bases of sex. In so finding, as to the Deportation Officer position, we find substantial evidence in the record supports the AJ's finding that Complainant would have been recommended to the SO and selected for the position if it were not for the fact that the panel changed her interview scores. The AJ found the testimony from P1 and P2 that interview scores were constantly changed due to later interviews was not credible. As the AJ noted, the Agency failed to provide evidence that other applicants had their scores altered. As such, in regards to the Deportation Officer position, we concur with the AJ that Complainant established that the Agency's nondiscriminatory reasons were pretext for discrimination based on sex. In regards to the Supervisory Immigration Enforcement position, the AJ found that Complainant established that the Agency's articulated reasons were pretext for discrimination. In particular, the AJ noted that the selection panel exhibited a pattern of giving Complainant substantially lower scores throughout the interview even when her answers to many of the questions were very similar. Further, the AJ found that the Agency failed to provide credible testimony as to why there was such a substantial disparity in the points given. We note that, on Appeal, the Agency contends that the AJ substituted her judgment for that of the managers who evaluated the Complainant. The Agency also maintains that the selectees were chosen because they exhibited leadership skills. We cannot ignore, however, the unorthodox manner by which the two panels evaluated Complainant. On two interview questions, Complainant received zero points even though she gave substantive answers. On another, Complainant only received two points while one of the selectees was given six points for the same question and a similar answer. As to the Agency's argument that Complainant did not demonstrate that her qualifications were "plainly superior," Agency testimony indicated that the selectees were to be chosen based solely on their interview scores. Therefore, in concurring with the AJ's determination that Complainant would have been selected, but for the fact that her scores were intentionally lowered by the Agency due to her sex, we find that Complainant's qualifications were plainly superior to those of the selectees. CONCLUSION Therefore, after a careful review of the record, the Commission discerns no basis to disturb the AJ's findings or the ordered relief. We find that the findings of fact are supported by substantial evidence in the record, and the AJ correctly applied the appropriate regulations, policies, and laws. The Commission REVERSES the Agency's final order and REMANDS the matter to the Agency to take corrective action in accordance with this decision and the ORDER below. ORDER The Agency, within 90 calendar days of this decision becoming final, shall take the following remedial actions: 1. The Agency, based on Complainant's choice, shall place her in the position of Deportation Officer, GS-11, retroactive to May 29, 2006, or the Supervisory Immigration Enforcement Agent, GS-11, position retroactive to August 6, 2006. 2. The Agency shall pay Complainant $24,141.25 in attorney's fees and $282.73 in costs. 3. The Agency shall pay Complainant $15,000.00 in non-pecuniary, compensatory damages. 4. The Agency shall determine the appropriate amount of back pay with interest; overtime pay, if any, with interest; and/or other benefits due Complainant, consistent with 5 C.F.R. § 550.805 less any appropriate offsets. 5. The Agency shall provide Title VII EEO training to the responsible management officials. 6. The Agency shall consider taking appropriate disciplinary action against the responsible Agency officials still employed by the Agency. 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 reasons(s) for its decision not to impose discipline. If any of the responsible Agency officials have left the Agency's employment, the Agency shall furnish documentation of their departure date(s). 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 actions have been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Salisbury, Maryland 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 (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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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), at 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 (R0610) 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 (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: ______________________________ Carlton M. Hadden, Director Office of Federal Operations ____8/23/10______________ Date 1 Neither the Agency nor Complainant has contested the remedies awarded by the AJ. Therefore, we will not address the AJ's remedy award in this decision. ?? ?? ?? ?? 2 0720090029 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720090029