Shela O., Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency. Appeal No. 0720130003 Hearing No. 531-2010-00120X Agency No. HHS-OS-0121-2008 DECISION Following its October 11, 2012 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. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405. BACKGROUND During the relevant time, Complainant worked as a Human Resources (HR) Specialist, GS-12 at the Agency's Rockville Human Resources Center in Rockville, Maryland. In June 2008, Complainant applied for one of several Customer Account Manager (CAM) positions posted under Vacancy Announcement #HHS-OSHR-2008-0069. On June 6, 2008, Complainant completed a first-level interview with HR Manager T. Interviews were usually conducted by more than one manager. However, on the day of Complainant's interview, the other manager was absent due to illness. According to Complainant, Manager T told her she did well after the interview. Complainant, however, was not recommended for a second-level interview. Manager T did recommend Selectee S and Selectee M for the next round of interviews, and they were both later selected for the position. Believing that her non-promotion was due to her race, age, and in reprisal for prior protected EEO activity, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint alleging: (1) On September 3, 2008, Complainant was informed that she was not selected for a promotion to a GS-13/14 Customer Account Manager (CAM) position. (2) On September 3, 2008, management denied Complainant's reclassification/ upgrade to a GS-13 Customer Account Manager position. 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. While the matter was pending before an AJ, the Agency filed a Motion for a Decision without a Hearing. Regarding claim (2), on January 19, 2011, the AJ issued a bench decision granting the Agency's motion for summary judgment. He found no discrimination with respect to the reclassification/upgrade on any basis. Further, the AJ concluded that the non-selection (claim (1)) was not motivated by reprisal. However, regarding claim (1), the AJ found the ROI to be deficient and denied the Agency's motion for summary judgment on Complainant's race and age claims. The AJ ordered the Agency to produce all applications and interview notes for those applicants who were granted second-round interviews. The AJ also ordered a list of all individuals Manager T interviewed and moved forward. However, the Agency was unable to provide the notes. Moreover, Manager T resigned from the Agency approximately two months after interviewing Complainant. Manager T was unable to recall the details of Complainant's interview or the selection process. Complainant filed a motion for sanctions regarding the Agency's failure to preserve interview notes from Complainant and all the other candidates, as well as the Agency's inability to identify those applicants who were given second-level interviews, but who were not ultimately selected. On March 21, 2012, the AJ granted the Complainant's motion and made the following two adverse inferences against the Agency: (1) that the destroyed interview notes would have reflected that Complainant did well in the interview, and that no other applicant gave a better interview; and, (2) that Manager T interviewed other individuals outside of Complainant's protected classes and referred them for second round interviews. Using these adverse inferences, as well as the other evidence of record, the AJ found race and age discrimination with regard to claim (1) by summary judgment. The AJ reasoned that Complainant established a prima facie case, but that the Agency failed to articulate any reason for not moving her on to the second round of interviews. Manager T gave no reason for not referring Complainant, and gave no reason why she did refer Selectee S and Selectee M. Therefore, the AJ concluded that Complainant was not promoted to one of the CAM positions due to her race and age. When given the opportunity to show that it would have made the same decision, even in the absence of the discrimination, the AJ found that the Agency again failed to meet its burden. At the March 21, 2012 proceeding, the Agency argued that a comparison of Complainant's application to all the selectees established that the selectees were plainly more qualified. The AJ acknowledged that Complainant's application was "somewhat scant" However, the AJ found that Complainant's application did set forth her qualifications. Complainant's experience was most similar to that of Selectee E and Selectee S, in that they had never held a position over GS-12. However, in her position, Complainant had acted as a CAM while Selectee E and S had not done so. Additionally, the AJ reiterated his adverse inference that Complainant gave the best interview. Consequently, the AJ was not persuaded that the Complainant would not have been selected in the absence of discrimination. In a Bench Decision on Liability and a Bench Decision on Relief, both issued on April 19, 2012, the AJ found that Complainant was not promoted to one of the CAM positions due to her race and age. The AJ's Order Entering Judgment, issued in August 2012, awarded Complainant the following: backpay from August 2009; pre-judgment interest at the penalty rate; placement into the CAM position or a substantially equivalent position; training for the position offered and accepted; frontpay where instatement is not immediately available; and a posting. Additionally, the Agency was required to pay $84,005.09 in attorney's fees and costs. On October 11, 2012, the Agency issued a decision rejecting the AJ's finding that Complainant proved that she was subjected to discrimination as alleged in claim (1). The Agency filed the instant appeal. ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record was adequately developed, to the extent possible (i.e. the Agency's inability to produce interview notes or data) and the Agency did not identify any genuine issue of material fact that was in dispute. The Commission has exercised its inherent authority to enforce its Part 1614 regulations by ordering sanctions in response to various violations. See, e.g., Kugler v. United States Postal Service, EEOC Appeal Nos. 0120092479, 0120092480 (July 30, 2010) (upholding an AJ's sanction against Complainant for failure to attend a scheduled hearing); Matheny v. Department of Justice, EEOC Request No. 05A30373 (April 21, 2005) (affirming a decision that upheld an AJ's imposition of sanctions against the Agency for failure to provide investigative reports). EEOC Regulation 29 C.F.R. § 1614.109(f)(3) authorizes an AJ to issue sanctions against a party when it fails, without showing good cause, to respond fully and in a timely manner to the AJ's orders or the other party's requests for information. The issuance of a decision partially or fully in favor of the opposing party may be an appropriate sanction in some cases. 29 C.F.R. § I614.109(f)(3)(iv). Sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. Gryder v. Department of Transportation, EEOC Appeal No. 0720070078 (August 13, 2009). A sanction may be used to deter the non-complying party from similar conduct in the future as well as to equitably remedy the opposing party. Id. If a lesser sanction would suffice to meet these objectives, an AJ may be abusing his or her discretion by imposing a harsher sanction. See Gray v. Department of Defense, EEOC Appeal No. 07A50030 (March 1, 2007); Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). Factors pertinent to "tailoring" a sanction or determining whether a sanction is, in fact, warranted, include the extent and nature of the non-compliance; the justification presented by the non-complying party; the prejudicial effect of the non-compliance on the opposing party; the consequences resulting from the delay in justice; and the effect of the non-compliance on the integrity of the EEO process. Id. In the instant case, the Agency argues on appeal that the AJ's sanctions were unduly harsh. The Agency contends that the AJ should not have made the adverse inference that no other applicant had a better interview than Complainant or that Manager T recommended candidates outside of Complainant's protected class for selection. The Agency asserts that it should not have been precluded from introducing any evidence that would have conflicted with these inferences. For example, the Agency contends that of the ten selections made, seven of the selectees were African-American. Regarding the basis of age, seven of the selectees were "older than, or of a comparable age to Complainant." The AJ's finding of discrimination, contends the Agency, is "based largely on [the] sanction imposed . . . ." According to the AJ, the sanctions were imposed due to the Agency's failure to preserve interview notes and inability to identify who was granted a second interview but not selected. His first adverse inference was that the destroyed interview notes would have reflected unfavorably on the Agency (i.e. that Complainant did well and no other applicant gave a better interview). The AJ initially considered making solely the inference that Complainant had done well in the interview. However, the AJ ultimately determined that the Agency's failure to preserve interview notes had "prejudiced Complainant's case to a far greater extent that just proving she gave a good interview." The next adverse inference was that Manager T interviewed and referred, for a second interview, individuals outside of Complainant's protected bases (race and age). The AJ noted that thereafter, the AJ provided evidence that Manager T had in fact participated in the first-level interviews of two white selectees. We find that the AJ's sanctions, the adverse inferences, were appropriately tailored to the Agency's destruction of interview notes. The Agency argues on appeal that since it attempted to locate the notes and did not contest that Complainant gave a good interview, it should not have been sanctioned. According the Agency, Complainant's interview performance was not disputed. We, however, are not persuaded. If it is agreed that Complainant gave a good interview, then it is all the more suspicious that she was not given a second interview. The Agency tries to persuade us that the AJ's additional adverse inferences were excessive, and essentially created Complainant's prima facie case. It asserts that the AJ should not have also inferred that Complainant performed better than all the other candidates and "inventing facts about [Manager T's] actions regarding other candidates." In light of the destruction of all interview notes, and Manager T's inability to recall details, we do not find the AJ's adverse inferences to be an abuse of discretion. In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For petitioner to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). The Agency argues that, absent the adverse inferences, Complainant could not establish a prima facie case since some of the individuals chosen for the multiple openings were also members of her protected classes. Specifically, the Agency contends that seven of the ten selectees were African-American and more than half of the selectees were either older than Complainant or close to her age. We do not find that the AJ erred in disregarding the composition of the selectees. The Agency failed to provide statistics regarding the demographics of the candidates at each level of interview, and various managers conducted first-round interviews. As noted by the AJ, in light of the missing interview notes and statistics, we do not know if Manager T, for example, only recommended younger, white candidates for the second round of interviews. The resulting selectees who are within Complainant's protected classes may have been initially interviewed and recommended by a manager other than Manager T. Therefore, we agree with the AJ, that the race and age of some of the selectees is not entitled to the evidentiary weight that the Agency is seeking. We find that Complainant has established a prima facie case. The burden now shifts to the Agency, to provide a legitimate, non-discriminatory reason for not granting Complainant a second interview and selecting her for the position. The Agency contends that Complainant was not given a second level interview because no recommendation, nor any information about Complainant's interview, was received from Manager T. The Agency argues that this absence of information is simply an administrative error, a legitimate reason. The Agency attempts to convince the Commission that seeking an explanation from Manager T to address the purported error, is an "improperly high burden [on] the Agency." We disagree. The Agency was given the opportunity to provide a legitimate, non-discriminatory reason for not granting Complainant a second-level interview. Even in light of the fact that it does not dispute Complainant performed well, the Agency believes it has met this burden by simply stating that the interviewing Manager did not recommend her for a second interview without any explanation. The Agency's circular reasoning clearly does not meet its burden. The AJ's conclusion that the Agency failed to present a non-discriminatory reason is supported by the instant record. The Commission agrees that Complainant has established she was subjected to discrimination, based on her race and age, when she was not promoted to the CAM position. Remedies As noted above, the AJ awarded Complainant: backpay, interest, placement into the position, training for the position, and frontpay if instatement was not immediately available. On appeal, the Agency challenges the AJ's determination that it failed to establish that Complainant would not have been selected absent the finding of discrimination. Once a complainant demonstrates that discrimination was a motivating factor in the agency's action, it is the agency's burden to demonstrate by clear and convincing evidence that it would have taken the same action even if it had not considered the discriminatory factor. If the agency is able to make this demonstration, the complainant is not entitled to personal relief, i.e., damages, reinstatement, hiring, promotion, back pay, but may be entitled to declaratory relief, injunctive relief, attorneys' fees or costs. See Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). In this case, we agree with the AJ that the Agency did not clearly establish that, absent the discrimination, it would not have selected Complainant for the position. Like Complainant, at least two of the selectees had not worked at the GS-13 level. While those two selectees did hold a college degree, and Complainant did not, the AJ correctly noted that this was not a necessary qualification. Further, we are not persuaded by the Agency's comparison, on appeal, of the scores given for application questions to Complainant and these two selectees. While Complainant scored 90.7, one of the selectees scored 92.2. This does not convince us that, without the finding of discrimination, the Agency would not have selected Complainant for one of the vacancies. Therefore, we find that the AJ properly found that Complainant was entitled to placement in the CAM position. With respect to the AJ's award of $84,005.09 in attorney's fees and costs, we find the award is appropriate. In his August 8, 2012 decision, the AJ found the work of Complainant's counsel totaled $95,995.30. From this amount, the AJ made several deductions, which included: a reduction for all hours, over 2.9, for pre-notification work; a reduction to paralegal rates for the presence of a second attorney at the hearings; a reduction of over 20 hours for excessive conferring; and an overall deduction of 5% for clerical work. We find the award to be proper and supported by the instant record. The Commission discerns no basis to disturb the AJ's findings. After careful examination of the record, we conclude that the AJ's findings of fact are supported by substantial evidence, and that he correctly applied the appropriate regulations, policies and laws. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby REVERSE the Agency's final order and REMAND the matter to the Agency in accordance with this decision and the ORDER below. ORDER Within sixty (60) calendar days, the Agency is ORDERED to take the following remedial actions: (1) The Agency shall retroactively, from August 2009, place Complainant in the Client Account Manager (CAM), GS-13 position. Complainant shall be provided training for the position. If the relevant position is unavailable, she shall be placed in a substantially equivalent position. Where instatement is not immediately available, she shall be award frontpay until the date she is awarded the position in question or a substantially equivalent position. (2) The Agency shall determine the appropriate amount of back pay, with interest, due to Complainant, pursuant to 29 C.F.R. 1614.501. The Complainant shall cooperate with the Agency's efforts to compute the amount of back pay and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to the Complainant for the undisputed amount within sixty calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. (3) The Agency shall pay attorney's fees and costs in the amount of $84,005.09. (4) The Agency shall post the attached notice of discrimination, as described below. The Agency is 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 all of the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Rockville Human Resources Center 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)), 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 (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 June 16, 2014 __________________ Date 2 0720130003 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130003