RAYMON KITSON, COMPLAINANT, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, (U.S. MARSHALS SERVICE), AGENCY. Appeal No. 0720100052 Hearing No. 401-2009-00142X Agency No. USM-2008-00152 Following its September 2, 2010 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. For the following reasons, the Commission REVERSES the Agency's final order. BACKGROUND Complainant worked as a Deputy United States (US) Marshal, for the Northern District of Georgia. Complainant was the Deputy in Charge of the Agency's office in Rome, Georgia and had been serving in that capacity for fifteen of the approximately twenty-two years he had been with Agency. During the period at issue, Complainant was acting as a Supervisory Deputy US Marshal in Atlanta. This was the second time in his career that he had assumed a supervisory detail not to exceed 120 days. When this supervisory position was advertised for permanent placement, Complainant applied. Complainant's name along with the names of four other Deputy US Marshals (three from the Northern District of Georgia) was placed on the best qualified list. The US Marshal for the Northern District of Georgia (the Marshal) convened a meeting with some of the supervisors he managed to receive their consideration of the candidates. Also included in this meeting was the Assistant Chief Deputy US Marshal, who was the first line supervisor (S1) of Complainant and the eventual Selectee, and the Administrative Officer. After that meeting, the Marshal allegedly ranked the candidates as follows: 1. Selectee 2. Female Candidate A 3. Complainant 4. Female Candidate B 5. Male Candidate not from Northern District of Georgia The Marshal sent the ranking list to the Career Board, which consists of higher graded Agency employees who are appointed by the Director of the US Marshal Service to serve two-year terms. The Career Board is the Agency recommending body for law enforcement promotions. The Board makes its recommendation to the Director of the US Marshal Service, who is the selecting official for all law enforcement promotions to a GS-13 or higher level. Members of the Career Board reviewed the candidates' Merit Promotion Resumes (Form USM-280B) and changed the ranking as follows: 1. Selectee 2. Female Candidate A 3. Female Candidate B 4. Complainant 5. Male Candidate not from Northern District of Georgia The reason given for lowering Complainant's rank was that he did not list any supervisory experience on Form USM-280B. On January 2, 2008, the Agency announced the selection of the Selectee for the position. The Selectee was 37 years old, and Complainant was 54 years old and less than three years away from the Agency's mandatory retirement age of 57. Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of age when: he was not selected for the position advertised under merit promotion announcement 07-203. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant time y requested a hearing. The AJ held a hearing on July 17, 2009, and issued a decision on July 7, 2010. The AJ found direct evidence of age discrimination based on what she found to be credible testimony from Complainant. Complainant testified that after the selection, S1 told him that the reason he was not selected was because he was "too short," meaning he was too close to mandatory retirement and that the Agency would have time to "mold" the Selectee. In the alternative, the AJ found that Complainant established a prima facie case of age discrimination and that Agency failed to produce a legitimate, nondiscriminatory reason for its action. Again, in the alternative, the AJ found that assuming the Agency had met its burden of production, Complainant proved the reason given was not the real reason and that it was a pretext for age discrimination because Complainant's qualifications for the position were plainly superior to those of the Selectee. The AJ found that competition for this position was solely between Selectee and Complainant and credited testimony from the Administrative Officer who stated that Female Candidate A was ranked second, after S1 suggested it, solely to make the list look like a female candidate was being considered. The AJ ordered the Agency to provide Complainant with back pay until he is placed in a commensurate position with commensurate pay. The Agency subsequently issued a final order rejecting the AJ's finding. In its brief, the Agency rejected the AJ's credibility determinations arguing that the inconsistencies the AJ cited were minor and not relevant or because she misinterpreted the testimony. The Agency also argued that many of her findings of fact, i.e., who made the actual selection, whose qualifications were superior, were not supported by substantial evidence. The Commission has no record of having received a response from Complainant. STANDARD OF REVIEW 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). ANALYSIS AND FINDINGS Initially we reject the Agency's argument that the Marshal's influence on this selection was unworthy of the import accorded to it by the AJ. While the Marshal may not have been the official selecting official, we agree with the AJ that he was the actual selecting official. In this regard, we have reviewed the Merit Promotion Resumes which were allegedly so important before the Career Board. We agree that Complainant's resume was lacking, but the Selectee's achievements also paled, at least on paper, in comparison to the resumes from two of the other three candidates. 1 From this we conclude that the Marshal's ranking of the Selectee in the number one spot exerted significance influence over the Career Board, and we find that substantial evidence supports the AJ's finding that the Marshal was the actual selecting official. In addition, several witnesses were asked if they understood how the hiring process worked and who made the selection for the position. Their testimony was characterized by a great deal of confidence, but the responses were inconsistent and exposed how very little was understood about the process in which they were asked to participate. Although we decline to conclude that Agency employees were deliberately not given the kind of clear information which would have enabled them to participate more thoughtfully, we find that the "decision-making process" for this selection lacked openness and integrity. The record establishes a significant level of dysfunction in the upper management of the Northern District. Although the AJ did not give specifics, she referred to "internal problems" as well as the Marshal's distrust of his Chief Deputy. These internal problems are referred to throughout the record. To some degree, this distrust led to S1 assuming many of the Chief Deputy's duties even though the Chief Deputy was of a higher rank than S1. The testimony from the Administrative Officer, both at the hearing and in the report of investigation, regarding her discomfort at the meeting the Marshal convened to discuss the candidates, underscores the tension resulting from the dysfunction as well as the lack of integrity in the process. Next, we turn to the AJ's credibility determinations. We reject the Agency's arguments that the inconsistencies between the testimony of the Marshal and S1 were of no import. The inconsistencies may seem minor when taken out of context or "cherry-picked." However, taken together the inconsistencies establish that neither individual was telling the whole truth about the "decision-making process" that led to the selection of the Selectee. Furthermore, the AJ found that Complainant truthfully testified that S1 told him he was not selected because he was "too short" and the Selectee could be molded. S1 denies saying anything of the sort to Complainant. However, S1 acknowledged telling the Marshal that the selectee was a stronger candidate because he could be "molded." We find that the only way Complainant would have heard these comments, which are so consistent with what S1 told the Marshal, is if S1 had told him directly. Turning to the AJ's legal analysis, of which she gave us several options, we find that Complainant established a prima facie case of age discrimination. He was 54 years old and qualified for the position. He was not selected in favor of a 37 year old. When the list arrived before the Career Board, the Board member assigned to the vacancy announcement was initially shocked to find that Complainant was not being recommended for the position because there was a belief among many of the individuals who knew and worked with him since the 1990s that he had earned this promotion. This evidence creates a strong inference of age discrimination. It is the Agency's burden to produce a legitimate and nondiscriminatory reason for its actions, in this case, selecting the Selectee over Complainant. The Agency's explanation must be sufficiently clear to raise a "genuine issue of fact" as to whether discrimination occurred. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Moreover, it must "frame the factual issue with sufficient clarity so that [Complainant] will have a full and fair opportunity to demonstrate pretext."Id. at 255-256.If the Agency fails to meet its burden of production, the consequence of that failure is that Complainant, having established a prima facie case, prevails without having to make any demonstration of pretext. We agree with the AJ that the Agency failed to meet its burden. First, if we accept that the explanation for not selecting Complainant was, as S1 explained, that he was "too short," we find that the explanation was not nondiscriminatory because his current age was considered in relation to the age he would soon be attaining. The Agency has not offered this as an explanation. Second, the record is silent as to what, if any, objective criteria were used by the Marshal to rank the candidates. All we know from the meeting with the supervisors is that there was agreement among them that the Selectee would be easier to work with, but the record is notably silent as to what formed the basis of that conclusion. The testimony from the supervisors contradicts the Marshal's assertion that the "special requirements" for the position were discussed in "great detail." What we know from S1 is that the Selectee would be easier to "mold." The Marshal described him as "positive," having "some vision," and not requiring "direct management supervision" in order to "operate." These are highly subjective observations which if we accepted as reasons could not withstand heightened scrutiny since there is no evidence that Complainant was difficult to work with, "negative," "without vision," or after having served fifteen years a the Deputy in Charge of the Rome sub office, in need of "direct supervision." Moreover, the AJ did not find the Marshal's testimony to be credible.2 However, we do not accept them as reasons because in the absence of any objective criteria, they truly fail to frame "the factual issue with sufficient clarity" to enable Complainant to demonstrate pretext. As such, Complainant prevails, and we need not address the Agency's argument with the AJ's conclusion that Complainant's qualifications were plainly superior to the Selectee's. We observe that the relief in this case is limited because Complainant faced mandatory retirement at the age of 57 and because compensatory damages and attorney's fees are unavailable. However we have modified the AJ's order to include declaratory relief. 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 and REMAND this matter to the Agency to take remedial action consistent with the ORDER below. ORDER 1. Within sixty days of this decision becoming final, the Agency shall provide Complainant with appropriate back pay from the date the Selectee assumed the position until the date of Complainant's mandatory retirement. 2. Within ninety days of this decision becoming final, Complainant's retirement benefits must also be adjusted to reflect any additional compensation he would be eligible for having retired as a GS-13. 3. Within ninety days of this decision becoming final, the Agency shall arrange for all GS employees in the Northern District of Georgia occupying GS-13 or higher level positions to have training in their responsibilities and obligations under the ADEA. 4. Within sixty days of this decision becoming final, the Agency shall consider taking appropriate disciplinary action against the individuals responsible for the discrimination. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). POSTING ORDER (G0610) The Agency is ordered to post at its Atlanta, Georgia 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. 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 (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. See29 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. 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 (S0610) 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 (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 February 15, 2011 1. The materials Complainant submitted with his merit promotion package were extremely complete and detailed, but for reasons that the record does not explain, only the "resume" is given to the Career Board. 2. The Marshal testified that he did not know what "too short" meant. This is a well known expression at the Agency. On appeal, the Agency argues that the Marshal was a political appointee, implying that his tenure was short and as an outsider, he would not know the law enforcement "lingo." However, the Marshal had been at the Agency for over five years at the time of this selection. As another example, in his affidavit, the Marshal stated that during the meeting with his supervisors, the list was narrowed to the two most qualified candidates, Complainant and the Selectee, but then testified at the hearing, that the candidates actually being considered were the Selectee and the two females.