Diane M. Stuart, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0720090038 Hearing No. 460200800155X Agency No. 200303622007104300 DECISION Following its May 7, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. Specifically, the Agency argues that Complainant is not entitled to an award of compensatory damages, attorney's fees, or back pay. For the following reasons, the Commission REVERSES the final order. BACKGROUND On January 3, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (White) and age (54 years old at time of incident) when: 1. On September 27, 2007, Complainant learned that she had not been selected for the position of Program Support Clerk, GS-4, under merit promotion No. 394-07-362-37-230. 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 AJ. Complainant timely requested a hearing and the AJ held a hearing on December 8, 2008, and issued a decision on March 26, 2009. 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 The Agency argues that the AJ's finding is erroneous because the record shows no evidence of discrimination. The AJ's finding of discrimination is based on a statistical disparity between the ratings provided by the two rating officials (RO1: African American, 37 years old at time of incident; and RO2: Caucasian, 50 years) who interviewed the applicants. The AJ noted that the ratings provided by ROs 1 and 2 for each applicant were quite close for all the applicants except Complainant and that the Agency was unable to explain the difference in the two ratings provided by ROs 1 and 2. The Agency argues that the discrepancy in the scoring is not evidence of discrimination and that RO1 gave high scores to some White candidates as well as to some candidates over 40, thus showing he was not motivated by racial or age-based animus. With regard to the award of compensatory damages, the Agency argues that damages are only due when the discrimination is intentional and the AJ specifically found that RO1's discrimination was not intentional. Finally, the Agency argues that Complainant is not entitled to back pay. Complainant argues that the AJ's finding of discrimination should stand. Complainant asks for back pay, front pay, liquidated damages, compensatory damages, attorney's fees, and interest. ANALYSIS AND FINDINGS Nonselection 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). In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corporation v. Green. 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). In the instant case, the AJ found that Complainant established a prima facie case of discrimination based on age and race when otherwise similarly situated applicants outside of her protected bases were selected for the position. Specifically, the record shows that 20 candidates were determined to be qualified and were referred for consideration and that eight candidates were selected, while Complainant was not selected. Two declined the position and six accepted. Of the six, all were younger than Complainant, while three are Black, two White, and one Hispanic. In view of the above, we find that the AJ correctly found that Complainant established a prima facie case of nonselection. The burden therefore shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its action. Burdine. The AJ found that the Agency successfully articulated a reason for its action when ROs 1 and 2 testified that they recommended the highest scoring candidates to SO for selection and that Complainant was not among the highest. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center. The AJ found that Complainant successfully made such a showing. The record shows that SO did not meet any of the applicants, including Complainant, and was unaware of the race or age of any of the applicants. The AJ concluded that SO therefore could not have discriminated against Complainant and that "therefore, if any discrimination occurred it would have to" have been due to the actions of RO 1 and/or 2. The AJ further found that ROs 1 and 2 both interviewed all the candidates, asking each one the same set of questions, and awarding points based on their responses. The AJ noted that for most of the applicants, ROs 1 and 2 did not differ greatly in the scores they awarded each applicant, with the scores for the same applicant differing by two points or less for 86 percent of the applicants. However Complainant was the only applicant where RO 1 and 2 differed greatly in their scores, with RO1 scoring her the lowest of all applicants while RO2 scored her the second highest of all applicants. Furthermore, the AJ found, RO1 could not explain why he scored Complainant so poorly. In addition, the AJ noted that the only non-African American to receive sufficient points from RO1 to be selected for the position was under forty years of age. After a careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We therefore discern no basis to disturb the AJ's findings in this regard. Damages and Attorney's Fees Regarding the award of non-pecuniary compensatory damages, we note that the Civil Rights Act of 1991 (CRA) authorizes awards of compensatory damages as relief for intentional discrimination in violation of Title VII. 42 U.S.C. §198la. Compensatory damages are recoverable in the administrative process. West v. Gibson, 119 S.Ct. 1996 (1999); see Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), req. to recon. den., EEOC Request No. 05930306 (February 1, 1993). Compensatory damages may be awarded for losses and suffering due to the discriminatory acts or conduct of the Agency and include past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992) (Notice) at p. 8. We note, however, that compensatory damages or attorney's fees are not available under the ADEA. See Tellez v. Department of the Army, EEOC Request No. 05A41133 (March 18, 2005). The AJ awarded $3,000 in nonpecuniary compensatory damages. Several Commission decisions have awarded compensatory damages in cases similar to complainant's case: Mathes v. United States Postal Service, EEOC Appeal No. 01A00093 (May 10, 2001) ($1,500.00 awarded where complainant nonselected causing him to feel anger, frustration and depression); Deering-Benford v. United States Postal Service, EEOC Appeal No. 01994500 (October 31, 2000) ($3,000.00 awarded where complainant not hired causing her to feel anguish over not having a job); Ko v. Department of Homeland Security, EEOC Appeal No. 07A20134 (December 1, 2003) ($5,000.00 awarded where complainant non-selected causing him disappointment and discouragement). We therefore affirm the AJ's compensatory damages award. With regard to the denial of liquidated damages, the Commission has held that liquidated damages are unavailable to Federal employees in the administrative process. Jacobsohn v Department of Health and Social Security, EEOC Request No. 05930689 (June 2, 1994). Finally, with regard to the AJ's denial of an attorney's fees award, she found that Complainant did not file an appropriate attorney fee petition, as required. Following a review of the record, we discern no basis to disturb the AJ's findings in this regard. Back Pay and Front Pay The AJ awarded back pay at the GS-4, Step 1, level from September 30, 2009, minus the amount of Complainant's private-sector earnings. The Agency's only argument against the AJ's back pay award is that Complainant was not discriminated against. In view of the fact that we find that Complainant was subject to discrimination, we find no basis to disturb the AJ's findings. With regard to front pay, the AJ found that Complainant has not shown entitlement to front pay and we agree. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has shown she was discriminated against based on age and race when she was not selected for the position of Program Support Clerk, GS-4, under merit promotion No. 394-07-362-37-230. We therefore REVERSE the Agency's final order and REMAND the matter back to the Agency. ORDER The Agency is ordered to take the following remedial action: I. Within 45 days of this decision becoming final, the Agency shall offer Complainant the position of Program Support Clerk, GS-4, Step 1, at the Michael E. DeBakey Medical Center in Houston, Texas (or some other mutually agreeable position/facility). Complainant shall also be offered benefits and step increases effective September 30, 2009. Complainant shall be given a minimum of thirty calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless Complainant can show that circumstances beyond her control prevented a response within the time limit. II. Within sixty days of this decision becoming final, the Agency shall pay Complainant the sum of $3,000 in nonpecuniary compensatory damages. III. Within sixty days of this decision becoming final, the Agency shall determine and pay complainant back pay (with interest, if applicable) and other benefits due complainant pursuant to 29 C.F.R. § 1614.501. The agency's determination shall be based on the fact that, absent discrimination, Complainant would have been selected for a Program Support Clerk position in September 2009, and subsequently would have received all career ladder promotions to which an employee who performed in a fully successful manner was entitled. If Complainant declines to accept the position, Complainant shall not be entitled to such back pay or benefits. IV. Within sixty calendar days of the date this decision becomes final, the Agency, if it has not already done so, shall take corrective, curative, and preventative action to ensure that discrimination based on race and age not recur, including but not limited to providing training against employment discrimination to RO1. 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)1 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 and costs in accordance with 29 C.F.R. § 1614.501. POSTING ORDER (G0610) The Agency is ordered to post at its Michael E. DeBakey Medical Center in Houston, Texas 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. 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 October 19, 2010 __________________ Date 1 This applies to all attorney fees and costs incurred after the period covered by the AJ's denial of an award of attorney fees and costs. ?? ?? ?? ?? 2 0720090038 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 5 0720090038