Willia C. Perry v. Social Security Administration 07A20053 April 16, 2003 . Willia C. Perry, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency. Appeal No. 07A20053 Agency No. SSA-99-0161 Hearing No. 140-A0-8033x DECISION Following its January 15, 2002 final order, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405. On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding that the agency discriminated against complainant on the bases of her race (Black), her sex, and age (D.O.B. 3/22/50) 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 AJ's order to provide $3,000.00 in non-pecuniary compensatory damages. For the following reasons, the Commission concludes that the agency violated Title VII. Complainant, a Social Insurance Generalist Claims Representative, GS-11, employed at the agency's Asheboro, North Carolina facility, filed a formal EEO complaint with the agency on January 23, 1999, alleging that the agency had discriminated against her when she was not selected for the position of Management Support Specialist, GS-12, vacancy announcement SSA103-98, in Asheboro, North Carolina. At the conclusion of the investigation, complainant was provided a copy of the investigative report and requested a hearing before an AJ. Following a hearing, the AJ found that complainant established a prima facie case of race, sex, and age discrimination when the responsible management officials (RMOs) selected a white, thirty year-old male for the position at issue. The AJ found that the agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the RMOs stated that complainant was not chosen because of her mediocre work performance, inability to interact well with management and staff, lack of initiative and leadership skills and reluctance to pursue professional self-development, e.g. conducting or participating in training. The AJ found that management's reasons for not selecting complainant were not supported by evidence in the record. Specifically, the AJ found that complainant's work record demonstrated that she was performing at the fully successful level, previously complainant was given serious consideration for another management position by the same management officials as in the instant case, and although management officials complained of delays in complainant's work, nothing in the record indicated that there were notable problems with complainant's overall performance and abilities. The AJ additionally found that although RMOs recalled that they were seriously considering a thirty-seven year old Black female for the same position, neither was able to provide any substantive information with respect to this other candidate. The AJ also found that RMOs made their selection based solely on verbal statements made by the applicants' supervisors and could not provide any evidence to support their ranking and selection process. Ultimately, the AJ found that based on the applications for the position, complainant was better qualified and more experienced than the selectee and did not receive full consideration for the position. The AJ thus concluded that complainant established that more likely than not, the reasons provided by the agency were a pretext for discrimination. The agency's final order rejected the AJ's decision. On appeal, the agency argues that the AJ erred by finding that complainant established that the legitimate, nondiscriminatory reason for not selecting complainant was a pretext for discrimination. Specifically, the agency argues that complainant failed to establish that her qualification were “clearly superior” to that of the selectee's. The agency also argues that complainant failed to establish that she would have been selected for the position but for her age. The agency also argues that the award of $3,000.00 in non-pecuniary compensatory damages was excessive. 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). We note that one way to establish pretext in a nonselection case is for complainant to show that her qualifications were plainly superior to those of the selectee. Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, the Supreme Court held that pretext may also be proven where: “[t]he factfinder's disbelief of the reasons put forward by the [employer] (particularly if disbelief is accompanied by a suspicion of mendacity) may together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the [employer's] proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.” St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Upon review, we concur with the AJ that complainant established prima facie cases of race and sex discrimination when a younger white male was selected for the position at issue. The AJ concluded that the agency's legitimate, nondiscriminatory reasons for its selection were not worthy of belief because the record was insufficient to support them. In this case, although we agree with the agency that complainant did not prove she was “plainly superior” to the selectee, we note that the AJ's reasons for disbelieving RMOs' explanations and the finding that complainant was better qualified and more experienced than the selectee are supported by sufficient evidence in the record. Accordingly, we conclude that complainant established by a preponderance of the evidence that the reasons given by RMOs were pretexts for discrimination. See Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133 (2000). After a careful review of the record, we discern no basis to disturb the AJ's finding of discrimination on the bases of race and sex.<1> In regard to the compensatory damages awarded by the AJ, we find that the award of $3,000.00 for compensatory damages was appropriate. We note that this amount meets the goals of not being motivated by passion or prejudice, not being “monstrously excessive” standing alone, and being consistent with the amounts awarded in similar cases. See e.g., Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000.00 in damages where complainant presented primarily non-medical evidence that she was irritable, experienced anxiety attacks and was shunned by her co-workers); White v. Department of Veterans Affairs, EEOC Appeal No. 195342 (June 13, 1997) ($5,000.00 in non-pecuniary damages based on emotional distress). Therefore, after a careful review of the record, including arguments and evidence not specifically discussed in this decision, the Commission finds the agency liable for violating Title VII and directs the agency to take remedial action in accordance with this decision and the Order below. ORDER The agency is ordered to take the following remedial actions: The agency shall conduct training for all management officials found to have discriminated against complainant regarding their obligations under Title VII. Within sixty (60) days, the agency shall offer complainant the position of Management Support Specialist, GS-12, in the Asheboro office. Complainant shall be given a minimum of fifteen (15) days from receipt of the offer of placement 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. The agency shall determine the appropriate amount of back pay with interest and other benefits due to complainant for the period from June 23, 1998, until complainant assumes or declines the position, pursuant to § 5 C.F.R. 550.805 and 29 C.F.R. §1614.501, and pay complainant. 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. The agency shall pay complainant $3,000.00 in non-pecuniary compensatory damages. POSTING ORDER (G0900) The agency is ordered to post at its Asheboro, North Carolina 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 (H0900) 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 (K0501) 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 19848, Washington, D.C. 20036. 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. STATMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 April 16, 2003 __________________ Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated_____________ which found that a violation of the Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., has occurred at the Social Security Agency facility located in Asheboro, North Carolina (hereinafter, the facility). Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The facility supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The facility was found to have unlawfully discriminated against one of its employees. The agency has remedied the discrimination by offering the employee the position which she was discriminatorily denied; providing back pay; providing proven attorney's fees and costs; providing proven compensatory damages; and providing relevant agency officials with EEO training. The facility will ensure that officials responsible for personnel actions and terms and conditions of employment will abide by the requirements of the Federal equal employment opportunity laws. The facility will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law. ____________________ Date Posted: _____________________ Posting Expires: _________________ 29 C.F.R. Part 16141 In regard to the agency's contentions that complainant failed to establish that but for her age she would have been selected under the ADEA, because complainant would not be entitled to further relief even if she did prevail under the ADEA, we decline to address the merits of complainant's age claim.