U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harvey D.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency. Appeal No. 0120122385 Agency No. DOSF03204 DECISION Complainant timely filed an appeal from the Agency's April 11, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue is whether Complainant is entitled to back pay and compensatory damages in light of newly discovered evidence. BACKGROUND On March 9, 2004, Complainant filed a formal complaint alleging that he was subjected to disability discrimination when he was denied an appointment to a Junior Officer position with the Foreign Service. After an investigation, the Agency issued a final decision finding no discrimination, and Complainant appealed. In our prior decision, we found the Agency discriminated against him when it failed to grant him a medical clearance based on its "worldwide availability" requirement. Bitsas v. U.S. Department of State, EEOC Appeal No. 0120051657 (Sept. 30, 2009). As relief, we ordered the Agency to retroactively offer Complainant a Junior Officer position, and to tender back pay and promotions from the date Complainant woldhave encumbered his position, absent discrimination, until the date he either enters on duty or is denied a medical or security clearance. We further ordered the Agency to undertake a supplemental investigation into complainant's entitlement to compensatory damages, provide training, consider taking disciplinary action, and post a notice of the finding of discrimination. Id. Pursuant to our order, on November 10, 2009, the Agency sent Complainant a Conditional Offer of Appointment to a Junior Officer position, contingent on the satisfactory completion of the security, medical, and suitability clearance processes. On January 1, 2010, Complainant received a Class 1 Medical Clearance. However, on July 16, 2010, the Agency's Final Review Panel (FRP) terminated Complainant's candidacy based on suitability grounds. The FRP concluded that, pursuant to 5 U.S.C. § 3328, Complainant was ineligible for federal Executive branch employment because he failed to register with the Selective Service System (SSS). The Panel also concluded that there were several instances of misconduct in Complainant's prior employment which rendered him ineligible for employment with the Foreign Service. Complainant appealed this decision, but on December 8, 2010, the Office of Personnel Management (OPM) determined that Complainant's failure to register with the SSS was knowing and/or willful; thus, he was ineligible for appointment to an Executive Agency. Complainant sought a request for reconsideration with the OPM, which was denied. In the meantime, Complainant sent the Agency information regarding his entitlement to compensatory damages. On April 11, 2012, the Agency issued a final decision denying compensatory damages, reasoning that the FRP's suitability finding would have resulted in the withdrawal of his conditional offer of employment, even if he had been granted a medical clearance for worldwide availability. Accordingly, the Agency determined complainant was not entitled to any compensatory damages. Other correspondence in the record reveals the Agency has provided training to the responsible officials, considered taking disciplinary action, and posted a notice in accordance with our prior order. CONTENTIONS ON APPEAL On appeal, Complainant argues that collateral estoppel prevents the Agency from denying back pay and compensatory damages. Complainant maintains that the Agency is liable for the discrimination, because the Agency was unaware of the selective service issue at the time of the discrimination. Complainant asserts that the Agency has not investigated his entitlement to compensatory damages, and also asks for attorney fees. In response, the Agency argues that it does not owe Complainant any compensatory damages, and contends it has fully complied with our prior order. The Agency suggests that in a "mixed motive" case such as this, compensatory damages are not available. The Agency maintains that Complainant would never have been placed into the position, even absent the negative medical clearance decision, because he was never eligible for employment. For that reason, the Agency argues, he also is not entitled to back pay. The Agency asserts that Complainant is not entitled to attorney's fees because he failed to submit a verified statement of fees and costs. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (August 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). The Agency asserts on appeal that this is a "mixed motive" case, and that Complainant therefore is not eligible for compensatory damages and back pay.2 Cases which have evidence that discrimination was one of multiple motivating factors for an employment action, that is, that the employer acted on the bases of both lawful and unlawful reasons, are known as "mixed motive" cases. Once a Complainant demonstrates that discrimination was a motivating factor in the employer's action, the burden shifts to the employer to prove, by clear and convincing evidence, that it would have made the same decision, even if it had not considered the discriminatory factor. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258 (1989); Tellez v. Dep't of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005). Given that Agency officials were unaware that Complainant had not filed with the SSS at the time of the discrimination, we are not persuaded by the Agency's untimely argument that this is a mixed-motive case, and find the theory has no bearing on the case. Rather, we find that the evidence of Complainant's unsuitability constitutes after-acquired evidence, which does not bar the Agency's liability for having engaged in unlawfully discriminatory conduct. See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) (holding that an employee discharged in violation of the ADEA is entitled to relief even if the employer subsequently discovers evidence of wrongdoing that would have led to the employee's termination on legitimate grounds); see also EEOC Enforcement Guidance on After-acquired evidence and McKennon v. Nashville Banner Publishing Co. (McKennon Guidance) (Dec. 14, 1995)(interpreting McKennon and noting that even where employer proves that it would have taken the same or more harsh adverse action had it known of employee misconduct, complainant will still be entitled to relief, but that relief may be subject to limitation). Here, there is no dispute that the Agency discriminated against Complainant in 2003 when it denied him a Class 1 medical clearance without conducting an individualized assessment into whether his alleged disability constituted a direct threat. Seven years later, it discovered that Complainant was not suitable for employment with the Foreign Service because he had not registered with the SSS, and therefore was not eligible for appointment to an Executive Agency. Nonetheless, the Agency's failure to comply with the requirements of the Rehabilitation Act still occurred, and should not be overlooked because of the subsequently acquired evidence. Indeed, the Supreme Court held that after-acquired evidence such as this does not defeat an employer's liability for employment discrimination, and should not serve as a basis to ignore the underlying violation. See McKennon, supra. Instead, the Court concluded that after-acquired evidence can bear upon the remedy afforded to the complainant. The Court in McKennon stated that, where an employer seeks to rely upon after-acquired evidence of wrongdoing to limit the amount of damages, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone had the employer known of the conduct at the time of the discharge. See McKennon, supra; see also Guido v. Soc. Sec. Admin., EEOC Appeal No. 07A10004, req. for recon. denied, EEOC Request No. 05A30976 (Oct. 21, 2003)(after-acquired evidence that ALJ was inactive Member of the Bar and thus unlicensed for period of four years did not nullify AJ's finding that nonselection was discriminatory and back pay was owed, but issue of reinstatement was remanded for evidence that agency would have acted on this evidence alone had it known about it); Benjamin v. U.S. Postal Service, EEOC Appeal No. 01980191 (May 7, 1999)(supplemental investigation ordered to consider whether after-acquired evidence of false statements in application would have been grounds for non-hire; back pay and compensatory damages investigation ordered); Martindale v. Dep't of Veterans Affairs, EEOC Appeal No. 01954423 (Dec. 9, 1997)(remedy was limited to back pay in light of evidence that complainant would have been terminated on the basis of his falsified application alone). Therefore, in order to establish that Complainant is not entitled to reinstatement and back pay, the Agency must establish that Complainant's unsuitability was of such severity that, had the Agency known about it prior to making its selection determinations, it would, on that basis alone, have rejected Complainant's application. We find that, in light of OPM's determination that Complainant is not eligible for appointment to an Executive Agency position, this matter is of such severity that, had the Agency known about it prior to the selection, it would have rejected Complainant's application. Accordingly, we find a retroactive placement to a Junior Officer position is not an available remedy in his case. However, Complainant is nonetheless entitled to back pay from the date of his non-selection to the date on which the Agency discovered that Complainant was not suitable, i.e., the date on which it learned that Complainant had not registered for the SSS. See McKennon Guidance, p. 5 (where employee's misconduct is so severe that employer would have taken same or harsher adverse action even absent discrimination, back pay may generally be limited to period from date of unlawful employment action to date that misconduct was discovered); see also, Guido, EEOC Request No. EEOC Appeal No. 07A10004, req. for recon. denied, EEOC Request No. 05A30976. Accordingly, the Agency will pay back pay in accordance with our order below. With respect to the compensatory damages award, we note that the purpose of compensatory damages is to compensate an individual for injuries or losses sustained as a result of discrimination, and nothing in McKennon suggests that compensatory damages for emotional harm should be time-limited. Victims may suffer an injury from discrimination regardless of whether a legitimate reason for an adverse action is subsequently discovered. McKennon Guidance. Accordingly, we find no support for the Agency's position that Complainant is not entitled to a compensatory damage award based on the after-acquired evidence. See Benjamin, EEOC Appeal No. 01980191 (remand for supplemental investigation into entitlement for compensatory damages after application of after acquired evidence rule).3 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 decision and REMAND the matter to the Agency in accordance with the ORDER below. ORDER (D0610) The Agency is ordered to take the following remedial action: 1. 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, no later than one hundred and twenty (120) calendar days after the date this decision becomes final. The back pay period shall be from September 23, 2003 until the date the Agency discovered Complainant had not registered with the SSS, approximately July 16, 2010. The 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 the Complainant for the undisputed amount within sixty (60) 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. 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 one hundred and twenty (120) calendar days, the Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. 3. The Agency shall pay Complainant's reasonable attorney fees in accordance with the paragraph below. 4. 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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M Carlton M. Hadden, Director Office of Federal Operations 10-22-2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 If an employer is able to make this demonstration, the complainant is not entitled to personal relief, that is, damages, reinstatement, hiring, promotion, back pay. But the complainant nonetheless may be entitled to declaratory relief, injunctive relief, attorneys' fees, and costs. See Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). 3 As noted above, the record reveals the agency has complied with the remaining aspects of relief ordered: (1) training, (2) consider taking disciplinary action; and (3) posting a notice. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2012-2385 2 0120122385