U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Enriqueta T.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120143049 Agency No. ARGORDON11MAY02392 DECISION On June 2, 2014, Complainant timely filed an appeal from a final Agency decision (FAD) dated May 6, 2014, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Equal Employment Opportunity Commission (EEOC or Commission) accepts this appeal pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as an Instructor in the Agency's Training and Development Branch in its Communications - Electronics Command in Fort Gordon, Georgia. On May 26, 2014, Complainant filed an equal employment opportunity (EEO) complaint, as amended, alleging that the Agency discriminated against her based on her age (51 and 52) when: 1. On April 22, 2011, she learned that she discriminatorily did not receive a pay raises after her December 2009 90-day performance review and after her December 2010 performance evaluation. Complainant also alleged that she was subjected to unlawful retaliation for prior protected EEO activity under the ADEA (filing the instant complaint) when: 2. she was terminated from her position effective June 10, 2011. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. In EEOC Appeal No. 0120113542 (Aug. 21, 2013), the Commission reversed. We found that under common law, the Agency exercised sufficient control over Complainant's position to qualify as her joint employer. On remand, following an investigation, the Agency provided Complainant with its investigative report and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). It found no discrimination. The Training and Development Branch had three sections - Hardware, Software, and Hand-Held Initiative. Management, from highest to lowest, was comprised of the Branch Chief, a Section Lead for each section, and Team Leads. Report of Investigation (ROI), 106 - 108. The Section Leads were known as Managers of Training & Development, and their role is not clear from the record. The above are all Agency employees. Complainant's Team Lead wrote that his supervisor was the Branch Chief. S3 stated that in 2009, he was Chief, Mobile Training, a reference to a supervisory position somewhere in the Branch. In June 2010, S3 became the Branch Chief. Following an interview with S3, Complainant was hired to the position of Instructor effective August 3, 2009. Complainant stated S3 informed her of her starting salary.2 ROI, 130. She variously wrote that at the job interview, S3 advised that after 90 days she would have an evaluation and if she was doing a good job she would receive a raise, and after 90 days it was standard practice to give a pay increase to those who met their goals. Investigative File (IF), 131, Complaint file (CF), 167. S3 denied telling Complainant if she was doing a good job she would receive a pay raise after 90 days. IF, 191. The EEO counselor wrote that in response to his question of whether it was standard practice to grant pay increases within 90 days to those employees who met their goals, the Team Lead said "yes, it can be based on achievement ability." CF, 180. Complainant received her written 90-Day Performance Review in December 2009. While the Agency used a staffing firm form, the narrative portion was completed by Complainant's Team Lead and signed by S3 as the supervisor. ROI, 114, 140, 173. Therein, the Team Lead wrote: [Complainant] has done a terrific job at learning the technical skills required of her position. Additionally, [Complainant's] professional presence has been noted in student critiques following the classes she has instructed and she consistently receives high ratings.... [Complainant] should continue to learn the Basic IT [information technology] course materials with the goal of becoming a Subject Matter Expert. Accompanying the review, the Team Lead recommended Complainant for a pay raise and bonus, which he stated he submitted through channels to the "supervisor." ROI, 173 - 174. The person who became the Section Lead at some point during Complainant's tenure wrote that the Branch Chief would be responsible for recommending a raise to the staffing firm after the 90-day review. ROI, 182. The staffing firm granted raises based on the Agency's recommendation. CF, 183, 184, IF, 174, 182 (statements by Complainant's Team Lead, Section Lead, and information from the staffing firm's site supervisor and project manager).3 The Agency did not recommend to the staffing firm that Complainant receive an increase following her 90-Day Performance Review. The record does not show who served as her Section Lead at this time. Complainant was issued her Performance Evaluation Form covering the period of January - December 2010, in December 2010. While the Agency used a staffing firm form, it was completed by Complainant's Section Lead with his signature as the supervisor, with input by Complainant's Team Lead. It had five overall rating categories, with "Excellent" and "Superior" being the highest. Employees were scored in two point intervals on various factors, such as job knowledge, work output, work quality, initiative, and leadership. A total score of 60 - 72 was Excellent, and a score of 74 - 80, Superior. Complainant earned a score of 72 - Excellent. In the narrative portion of the evaluation, the Agency wrote: [Complainant] has excelled in every aspect of an instructor for TDB [Training Development Branch]. She became a certified Basic IT Instructor in less than 90 days and after 60 days she became certified to teach the Advanced Routing course. She has been studying for her CCNA certification on her own after hours. She receives very high ratings from her students and fellow instructors. She is quick to volunteer to teach short suspense training for the PM/WIN-T and unit requested training.... In input accompanying the evaluation, the Team Lead noted Complainant was teaching Basic and Advanced alone, and recommended her for a pay raise and bonus. However, following Complainant's 2010 Performance Evaluation, the Section Lead did not recommend Complainant for an increase. ROI, 182 - 183. Nor did S3. The Section Lead stated that a few weeks after completing the yearly evaluations (in December 2010) there was a monthly Team Lead meeting where S3 stated that due to budget constraints no one would be receiving a raise anytime soon. He wrote that a couple of months later they had another meeting and S3 stated if someone stands out from all the others to let him know and if funds were available he would possibly recommend them for a pay increase. ROI, at 182 - 183. He did not recommend Complainant. S3 minimized the Agency's role in the 90-Day Performance Review and 2010 Performance Evaluation - describing it as providing input when asked by the staffing firm, noting this was common practice. ROI, 190 - 192. When asked why Complainant did not receive a pay raise after her 90-Day Performance Review, S3 responded he did not know, her staffing firm would have to answer this. When asked who would have been responsible to recommend and/or approve Complainant for a pay increase after her 90-Day Performance Review, S3 responded the staffing firm. When asked about Complainant's overall performance rating for 2010, S3 responded that he did not know, but she was a mediocre instructor at best. When asked why Complainant did not receive a pay increase for performance year ending in 2010, S3 responded he did not know. Complainant cited two comparative employees - Comparison 1 (age in her 30s) worked for a different staffing firm. She served in the Agency as an Instructor in its Training and Development Branch in a different section - Software. Complainant wrote that while she did not know if Comparison 1 received an increase in 2009, Comparison 1 told her she got one in 2010, but not the amount. Comparison 2 (age 25 -26) worked for the same staffing firm as Complainant. She was hired by the staffing firm on May 10, 2010, and served the Agency as an Instructor in its Training and Development Branch in the same section as Complainant - Hardware.4 She also served on Complainant's team - Networking, but this team, unlike all others, had two Team Leads. They had different Team Leads. In August 2010, Comparison 2 received her 90- Day Performance Review, which was signed by the Section Lead as supervisor. The Agency wrote therein that Comparison 2 became a primary instructor in Basic IT (IT-Networking and Cisco-Routing) faster than other recent hires, and served as an assistant instructor for the Advanced Routing course and was preparing to become a primary therefore. The Review reflected that Comparison 2 received spectacular ratings from her students - with examples like "best course in 19 years of service," she is a "keeper," and one student going through the trouble of creating a "6" score on the right hand column for professionalism. But the Agency also wrote that Comparison 2 was young and new to the government/military/contractor environment, experienced several obstacles and dealt with situations she never saw before, and only through time and exposure to this environment would she gain the knowledge and experience needed to work within this environment. Following the 90-Day Performance Review, the Section Lead did not recommend Comparison 2 for a raise, and wrote that he believed the recommending official at that time would be S3. ROI, 182. When asked about his knowledge of Comparison 2 receiving a pay increase after her 90-Day Performance Review, S3 stated that he recommended that she receive a raise at some point to the staffing firm based on her performance, which he described as outstanding - one of the best in the Branch. ROI, 191. On October 4, 2010, Comparison 2 received an hourly pay raise from $28.85 to $32.69. ROI, 153. Complainant's hourly rate was $28.45. Complainant's Response to Agency's Opposition to Appeal, Exhibit F. Exhibit F, which Complainant received from the staffing firm in civil action discovery, lists dates of birth, starting salaries, and pay raises through 2011 of staffing firm employees.5 Complainant stated that Comparison 2 told her that she received an $8,000 increase for 2010 (which is consistent with the above increase and a 40 hour week), and also an unspecified increase following her 90-Day Performance Review. ROI, 133. But Exhibit F indicates Comparison 2 only received one raise. The Agency completed Comparison 2's Performance Evaluation for May - December 2010 in December 2010. The Section Lead signed off as the supervisor. Her total score was 70 - Excellent. Therein, the Agency wrote: [Comparison 2] learns quickly and constantly. She teaches our basic class regularly, and has not taught our advanced course only because we have fewer of those classes to share among instructors. She is personable, a willing worker, and popular with the students. Her critiques are consistently good... [Comparison 2] will need to become a certified Advanced Routing course Instructor...." The Section Lead did not recommend Comparison 2 for a raise after this evaluation. ROI, 183. When asked about his knowledge of Comparison 2 receiving a pay increase in 2010, S3 responded that he recommended Comparison 2 for an increase in 2010 to the staffing firm based on her outstanding performance - one of the best in the Branch. ROI, 192. It is unclear whether this referred to before or after the December 2010 evaluation. In January 2011, S3's assistant sent an email drafted by S3 to the staffing firm. Therein, S3 wrote that: (1) nobody should be brought into the Training & Development Branch without his knowledge, (2) no pay increase/decrease were to be made without his knowledge, and (3) anything that affected his budget must come to him before it is sent to the Agency Contract Officer Representative. ROI, 122. Complainant initiated EEO counseling in May 2013. On May 16, 2014, the EEO counselor interviewed the staffing firm's site manager and project manager to gather information on Complainant's pay increase claim. Complaint file, 183 - 185. On June 9, 2014, the staffing firm terminated Complainant. With her investigative affidavit, Complainant submitted a signed November 2011 letter by the staffing firm's Senior Vice President/Chief Operating Officer/General Counsel (COO) (same person) that he submitted to the EEOC in response to Complainant's charge of discrimination against the staffing firm. The COO wrote that that the staffing firm fired Complainant because she brought her EEO claim with the government EEO office. The COO explained that Complainant's attempt to file meritless claims with the government EEO office amounted to a violation of the staffing firm's policy against filing inaccurate reports with the government, and put her husband's personal interests in his dispute with S3 in inappropriate conflict with the interest of the staffing firm with its important government client. Complainant's husband is an Agency Team Lead in the Hand-Held Initiative section of the Training and Development Branch. ROI, 108. The COO expressed the belief that Complainant filed her claim with the government EEO office to target S3 in an attempt to support her husband, who also filed a complaint against S3. He suggested that if her complaint was legitimate, she would have filed it with the staffing firm. The COO wrote that the full details of Complainant's complaint were not shared with it by the Agency or its EEO office. He wrote that the staffing firm was told by the Agency's EEO office that even though Complainant had no business trying to file a complaint with the Agency, it reviewed the matter and found no merit to it. In May 2011, the EEO counselor interviewed Complainant's Team Lead to gather information on her pay raise claim, and interviewed S3 for this reason and to get information on whether the Agency was a joint employer. The Team Lead stated that he did not recommend that Complainant be terminated, and was not informed of the reason for it. ROI, 176. The Section Lead stated he was not aware Complainant filed an EEO complaint until long after she was terminated, was not involved in the termination, and was unaware of the reason for it. ROI, 184, 186. S3 stated that he made no recommendation regarding Complainant's termination, and had nothing to do with it. ROI, 193. The Agency conceded in its FAD that certain information in S3's declaration, particularly with respect to performance was not supported by the record, and hence called into question the credibility of his statements in general. Regarding a pay raise, the Agency found that Complainant was not similarly situated to Comparisons 1 and 2. Regarding the termination, the Agency found that assuming, without deciding, that the COO's statement showed the staffing firm removed Complainant in reprisal for her protected EEO activity, there was no evidence in the record demonstrating that the staffing firm terminated her at the suggestion or behest of the Agency. ANALYSIS AND FINDINGS Pay Raises On appeal, Complainant argues that she was discriminated against based on age when she did not get a raise. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). The specific elements of a prima facie case depend on the circumstances. McDonnell Douglas, at 802 n. 13. Complainant may establish a prima facie case of age discrimination by providing evidence that: (1) she is a member of a protected class; (2) she was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) either that similarly situated individuals outside her protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Littlejohn v. City of New York, 795 F.3d 297, 307 (2nd Cir. 2015); EEOC Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 6-5, n. 2 (as revised, August 5, 2015). S3 stated Complainant served as an intern in the Branch, was doing really well - picking things up, and he recommended that she be hired. S3's Civil Action deposition, Document 39, at 18 - 19. We credit Complainant's statement that at her job interview S3 advised her that it after 90 days she would have an evaluation and if she was doing a good job she would receive a raise. The EEO counselor wrote that in response to his question of whether it was standard practice to grant pay increases within 90 days to those employees who met their goals, the Team Lead said "yes, it can be based on achievement ability," and Complainant met her goals. CF, 180. In finding that S3 advised Complainant that after 90 days she would have an evaluation and if she was doing a good job would get a raise, we concede that on summary judgment the Court found that 21 trainers worked for the staffing firm performing the same duties as Complainant, and several older comparators received raises and many younger did not - and there was no apparent pattern of treating older employees worse than younger ones. Civil Action Document 50, at 16 - 17. But this goes strictly to the staffing firm's actions and liability - the Court also found that for Complainant to get a raise the Agency would have to recommend it to the staffing firm, and it did not do so. In its summary judgment decision, the Court found that Complainant receiving a raise would require a recommendation by the Team Lead to the Section Lead, who if he agreed could forward the recommendation to the Branch Chief, who if he agreed would submit the recommendation to the staffing firm, and the staffing firm did not give Complainant a raise because it did not receive a recommendation from the Agency. Following Complainant's 90-Day Performance Review, which was highly positive, her Team Lead recommended her for a pay raise. He wrote that he submitted it through channels to the "supervisor."6 We find that more likely than not S3 had some role in the process of making a pay raise recommendation for Complainant - at her job interview he advised her that after her 90-day performance review if she was doing a good job she would receive a pay raise, and he signed off on that review as supervisor. We agree with the Agency that Complainant is not similarly situated to Comparison 1. They worked for different staffing firms, and Complainant has not shown that the procedures for their receiving evaluations and raises were the same or equivalent. Complainant and Comparison 2 worked for the same staffing firm and served in Agency in the same Branch, Section, and Team - Networking team, but within the team reported to different Team Leads. On her 90-Day Performance Review, which was signed by Section Lead in August 2010, about eight months after Complainant's 90-Day Performance Review, Comparison 2 received a very positive review - similar to Complainant's. The record does not reflect if Comparison 2's Team Lead was involved in drafting the review or made a recommendation to give her a raise. Following the 90-day review, her Section Lead did not recommend that Comparison 2 get a raise. But despite this S3, by then the Branch Chief, did, and she received a raise in October 2010. Complainant has made out a prima facie case of age discrimination. At her job interview, S3 advised Complainant that after 90 days she would have an evaluation, and if she was doing a good job would get a raise. She was doing a very good job, as confirmed by her Team Lead, who recommended her for a raise, but this recommendation was not moved forward by higher level government management. S3 played a role in this. About eight months later, Comparison 2 received a 90 day evaluation similar to Complainant's. Despite not receiving a recommendation for a pay raise by the Section Chief, S3 recommended her for a raise to the staffing firm, and she received one. While we concede that Comparison 2 is not similarly situated to Complainant in all respects, we find the evidence sufficient to raise an inference of age discrimination, given all the above. The Agency did not explain why Complainant did not receive a pay increase after her 90-day evaluation. When asked, S3 stated he did not know. Contrary to the evidence in the record, S3 minimized the Agency's role in the performance reviews and evaluations, contended it was the staffing firm's role to make the recommendation for Complainant's increase following her 90-day review, and stated Complainant's performance was mediocre. To the extent S3's contention that Complainant did not receive a raise following her 90-day review because her performance was mediocre, Complainant has proven this was not true and suggesting that it was proffered as pretext to mask age discrimination. The Agency conceded in its FAD that certain information in S3's declaration, particularly with respect to performance was not supported by the record, and hence called into question the credibility of his statements in general. We agree. As such, we conclude that Complainant has established, by a preponderance of the evidence, that she was subjected to disparate treatment based on her age when she was not provided with a raise following her December 2009 90-day review. But we find no discrimination regarding Complainant not receiving a raise following her Performance Evaluation in December 2010. The record reflects that the budget tightened after this period, and Comparison 2 also did not receive a raise for following her December 2010 Performance Evaluation. Removal The staffing firm admitted that it terminated Complainant's employment because of her EEO activity against the Agency.7 The staffing firm COO explained that Complainant's attempt to file meritless claims with the government EEO office amounted to a violation of the staffing firm's policy against filing inaccurate reports with the government, and put her husband's personal interests in his dispute with S3 in inappropriate conflict with the interest of the staffing firm with its important government client. Agency management indicated it was not involved in the removal in any way. On appeal, Complainant argues that to prevail on her termination claim she is not required to show that the staffing firm acted at the suggestion or direction of the Agency. She argues that when two entities are joint employers, each is liable for discriminatory violations of the other under the theory of agency. The Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997)(available at www.eeoc.gov.) provides the following: the client of a staffing firm is obligated to treat the workers assigned to it in a nondiscriminatory manner. Where the client fails to fulfill its obligation, and the staffing firm knows or should know of the client's discrimination, the firm must take corrective action within its control. The staffing firm is liable if it participates in the client's discrimination or knew or should have known about the client's discrimination and failed to undertake prompt corrective measures within its control. Discrimination at Work Site section. Example 12: A staffing firm provides computer services for a[n]...employer. The staffing firm assigns an individual to work on-site for that client. When the client discovers that the worker has AIDS, it tells the staffing firm to replace him because the client's employees fear infection. The staffing firm alerts the client that they are both prohibited from discriminating against the worker, and that such a discharge would violate the ADA. The client nevertheless continues to insist that the firm remove the worker from the work assignment and replace him with someone else. The staffing firm has no choice but to remove the worker. However, it declines to replace him with another worker to complete the assignment because to do so would constitute acquiescence in the discrimination. Furthermore, the firm offers the worker a different job assignment at the same rate of pay. The client is liable for the discriminatory discharge.... The staffing firm is not liable because it took immediate and appropriate corrective action within its control. Id. As can be seen from the above language in the Commission's guidance, the Commission does not subscribe to Complainant's argument of strict liability - where one of the joint employers is liable, both are automatically liable. We will assume arguendo that our guidance also applies in reverse - that where the staffing firm engages in discrimination and the client knows or should know of the discrimination and fails to undertake prompt corrective action within its control, the client is also liable. Here, Complainant has not shown that the Agency was directly or indirectly involved in the removal, or knew that it was impending, or knew the reason for the removal. Accordingly, we find that the Agency is not liable for the staffing firm's action of removing Complainant. Remedy If the client qualifies as an employer of the worker, it is liable for discriminating against the worker on the same basis that it would be liable for discriminating against any of its other employees. Id., Question 8. This is also true when the client employer is a federal agency. Id., Question 9. Where the combined discriminatory actions of a staffing firm and its client result in harm to the worker, they are jointly and severally liable for back pay, front pay, and compensatory damages. This means that the complainant can obtain the full amount of back pay, front pay, and compensatory damages from either one of the employers alone or from them combined. Id., Allocation of Remedies Section. Even where there is joint liability, neither the charging party nor the Commission is obligated to pursue a claim against both entities. Id., n. 42. In Brinkley v. United States Postal Service, EEOC Appeal No. 07A40110 (April 28, 2005), the complainant worked for a staffing firm serving the Postal Service. An EEOC AJ issued a decision finding that the Postal Service and staffing firm jointly employed the complainant, and that the Postal Service discriminated against him when he was terminated. As remedy, the AJ awarded the complainant back pay with interest and benefits until the contract with the staffing firm ended, non-pecuniary damages, and other relief. On appeal, the Postal Service only challenged the award of non-pecuniary damages, arguing it should be reduced. The Commission in part ordered the Agency, if it had not already done so, to determine the appropriate amount of back pay, with interest and other benefits, due complainant for the back pay period, pursuant to 29 C.F.R. § 1614.501. Here, the staffing firm paid Complainant's wages and provided her benefits. Complainant was hired on August 3, 2009, at an hourly rate of $28.45. Comparison 2, the closest Comparison to Complainant, was hired on May 10, 2010, at an hourly rate of $28.85, and received an increase to $32.69 effective October 4, 2010. She received her raise 147 days after being hired. Accordingly, we find that Complainant's back pay period runs from December 29, 2009 through June 10, 2011 - 147 days after she was hired through the date of her termination. Given that their starting salaries were almost the same, we find that absent the discrimination, Complainant's increase would have been to an hourly rate of $32.29. In this decision, we have found that the Agency violated the ADEA, not any other statute. In the federal sector administrative EEO process, compensatory damages and attorney fees are not available for a violation of the ADEA. Taylor v. Department of the Army, EEOC Request No. 05930633 (Jan. 14, 1994) (compensatory damages); Seymour & King v. Department of Veterans Affairs, EEOC Request Nos. 05900257 & 05900256 (July 20, 1990) (attorney fees). CONCLUSION The Agency's final decision concluding no discrimination was established is hereby AFFIRM in part and REVERSED in part. We find that the Agency discriminated against Complainant based on her age when, following her 90-Day Performance Review, it did not recommend to her staffing firm that she would get a raise, resulting in her not getting one. We affirm the finding of no discrimination on the remainder of her complaint. To remedy Complainant for the proven discrimination, the matter is remanded to the Agency for compliance with the following Order. ORDER The Agency is ordered to take the following remedial actions: 1. Within 120 calendar days after this decision becomes final, determine and pay the appropriate amount of back pay and wage-related benefits Complainant would have received from the staffing firm had she received the increase; and provide interest thereon calculated accordance with 29 C.F.R. § 1614.501. The back pay period runs from December 29, 2009 through June 10, 2011, and shall be calculated based on an increase in Complainant's hourly rate from $28.45 to $32.29. 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." Within 180 calendar days after this decision becomes final: 2. Provide training to Agency official's responsible for the discrimination on how to recognize and prevent violations of the ADEA. 3. Consider taking disciplinary action against those responsible for the discrimination against Complainant. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 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. POSTING ORDER (G0914) The Agency is ordered to post at its Training and Development Branch in its Communications - Electronics Command in Fort Gordon, Georgia copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations September 2, 2016 __________________ 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 We take administrative notice that in September 2013, Complainant filed a civil action against her staffing firm in the United States District Court, Northern District of Georgia, 1:13-cv-02954. She was represented by the same law firm in the civil action and the instant administrative complaint. In a civil action deposition, S3 stated that he recommended to the staffing firm that Complainant be hired. Document 39, at 19 - 20. In a civil action deposition, Complainant's Team Lead stated that after Complainant came on board, S3 asked him to take her under his wing and she later became one of his team members. Document 38, at 10. We take administrative notice of other civil action filings referred to in this decision. 3 With the staffing firm's civil action motion for summary judgment, it submitted a declaration by the President of its Field Services division, of which Complainant was a part. Therein, the President wrote that the staffing firm did not approve an increase for Complainant because he never received a recommendation for a raise for her from the Agency. Civil Action Document 36. 4 The Agency referred to Comparison 2's position as Instructor. The staffing firm initially labeled Complainant and Comparison 2's positions as Operations Specialist Entry Level. On their December 2010 Performance Evaluation form, the staffing firm labeled Complainant Network Specialist/Journeyman and Comparison 2 Training Specialist Journeyman. 5 In Exhibit F, the Agency referred to Complainant and Comparison 2 as Training Specialist Journeyman. 6 In its decision on the Agency's motion for summary judgment regarding the pay raises, the Court wrote that initially, Complainant's Team Lead reported to S3, but later reported to the Section Lead (referenced in this decision), who reported to S3. Document 50, at 4. In his investigative affidavit, the Team Lead stated that initially his first line supervisor was the predecessor of S3 (not the Section Lead referred to in this decision), and then S3. ROI, 173. 7 Complainant's lawsuit against the staffing firm was dismissed by joint stipulation after they reached a settlement, which is not in the Court record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120143049 2 0120143049