Manuel K., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0720130007 Hearing No. 531-2011-00157X Agency No. 2004-0512-2008103576 DECISION Following its October 28, 2012, final order, the Agency filed an appeal partially challenging the EEOC Administrative Judge's decision awarding remedies following a finding of discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Specifically, the Agency challenges the AJ's order for it to place a Notice on its Agency website. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Structural Firefighter Driver at the Perry Point VA Medical Center. In March 2007, Complainant applied and interviewed for the Lead Firefighter position (GS-0081-07) posted under Vacancy Announcement Number 07-075. The application materials for the position requested information about the last high school attended and the year in which the diploma was earned. Complainant indicated that he graduated from high school in 1981. The Agency chose two selectees, and on May 29, 2007, Complainant was notified that he was not selected for the position. The Union filed a grievance, and in May 2008, an arbitrator ruled in its favor. The arbitrator ordered the Agency to redo the selection process. The Agency recreated the selection process and convened a new interview panel with a new selecting official (SO). The panelists scored and ranked the candidates and made recommendations to SO. SO chose two selectees, both younger than Complainant and under 40, including one candidate who was selected during the prior selection process. On July 16, 2008, Complainant learned that he had again not been selected. On October 6, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (45) when, on May 24, 2008, he was not selected for the position of Lead Firefighter. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on October 27, 2011, and issued a decision on October 2, 2012. In the decision, the AJ determined that Complainant demonstrated that the Agency's reasons for not selecting him were pretext for discrimination. SO testified that he relied solely on the interview panel's recommendations when he declined to select Complainant for one of the vacant positions. The AJ noted that SO did not identify what qualifications one of the selectees (Selectee 1) possessed that either he or the panel determined made Selectee 1 the better choice for the position. Further, the AJ found that a review of the application materials showed that Complainant was clearly superior to Selectee 1. Finally, the AJ found that the interview panelists' stated reasons for not recommending Complainant for the Lead Firefighter position were without support because none of the panelists provided an explanation for the scores they gave the candidates. Thus, the AJ found that Complainant had shown that the Agency's reasons for his non-selection were pretextual. As a result, the AJ held that Complainant was discriminated against as alleged. The AJ ordered the Agency to pay Complainant back pay and benefits and to post a Notice at its facility and on its Agency website. The Agency subsequently issued a final order accepting the AJ's finding that Complainant had been discriminated against, but rejecting some of the relief ordered. Specifically, the Agency rejected the AJ's order that the Agency post a Notice on its Agency website stating that a violation of the ADEA occurred at the Perry Point VA Medical Center. CONTENTIONS ON APPEAL On appeal, the Agency argues that the AJ exceeded regulatory authority in ordering it to post a notice on its website. The Agency contends that it could find no case law allowing such a broad posting requirement after a finding of discrimination. Further, the Agency argues that requiring it to broadly disseminate such a notice contradicted the plain wording of 29 C.F.R. § 1614.501(a)(1) and would require notice and comment rulemaking to amend said regulation. Accordingly, the Agency requests that the Commission modify the AJ's order. Complainant submitted no arguments in opposition. ANALYSIS AND FINDINGS The Agency does not challenge the AJ's finding of discrimination; rather, it rejects part of the corrective action regarding the AJ's Order to post a Notice on its Agency website stating it violated the ADEA. EEOC Regulation 29 C.F.R. § 1614.501(a)(1) provides that after a finding of discrimination, the Agency shall post a Notice "to all employees of the agency in the affected facility of their right to be free of unlawful discrimination and assurance that the particular types of discrimination found will not recur." (emphasis added). Thus, the Commission determines that the Agency correctly asserted that 29 C.F.R. § 1614.501(a)(1) usually requires that the Notice only be posted at "the affected facility." However, the Commission acknowledges that on a case-by-case basis, there may be justification for ordering posting on a wider basis. See Mohar v. U.S. Postal Serv., EEOC Appeal No. 0720100019 (Aug. 29, 2011). In the instant case, the AJ has not explained her reason for ordering the wider posting. Therefore, the Commission modifies the AJ's Order so that the Notice need only be posted at the Agency's Perry Point VA Medical Center in Baltimore, Maryland. CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Commission AFFIRMS the Agency's final order. ORDER The Agency, to the extent that it has not already done so, is ordered to take the following remedial action: 1. Within 60 days of the date this decision becomes final, pay Complainant back pay to be calculated from the date he was not selected for the Lead Firefighter position on June 30, 2008, to the date of his separation from the Agency. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 2. Within 60 days of the date this decision becomes final, provide two hours of EEO training for responsible management officials, with an emphasis on their obligations under the Age Discrimination in Employment Act of 1967. 3. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. Within 30 days of the date this decision becomes final, the Agency shall report its decision to the Compliance Officer referenced herein. 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 employment, then the Agency shall furnish documentation of their departure date(s). 4. The Agency shall immediately post a notice in accordance with the paragraph below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Perry Point VA Medical Center in Baltimore, Maryland 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 (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 November 1, 2013 __________________ Date 2 0720130007 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130007