U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neil M.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency. Appeal No. 0720140005 Hearing No. 443-2011-00139X Agency No. NRCS-2010-00925 DECISION Simultaneous with its October 25, 2013, final order, the Agency initiated an appeal pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ's) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2 The Agency also requests that the Commission affirm its rejection of the non-pecuniary compensatory damages awarded by the AJ. For the following reasons, the Commission MODIFIES the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the AJ abused his discretion in conducting a telephonic hearing; (2) whether substantial evidence in the record supports the AJ's finding that the Agency subjected Complainant to disparate treatment on the bases of race (African-American) and age (47) in connection with his non-selection for a Contracting Officer position; and (3) whether the AJ erred in awarding Complainant $5,000 in non-pecuniary compensatory damages. BACKGROUND On May 5, 2009, Complainant began working as a Contract Specialist, GS-1102-11, at the Agency's Iowa State Office in Des Moines. From May 5, 2009, to August 14, 2010, Complainant's first-level supervisor was the Contracting Officer (S1). At all times relevant to this complaint, Complainant's second-level supervisor was the Assistant State Conservationist (S2 - Caucasian, 60) and Complainant's third-level supervisor was the State Conservationist (S3 - Caucasian, 55). On August 20, 2010, Complainant applied for the position of Contracting Officer, GS-1102-12, advertised under vacancy announcement number IA-10-26. The vacancy was for the position formerly held by S1. According to the vacancy announcement, the following knowledge, skills, and abilities (KSAs) were required for the position: 1. Knowledge of Federal Procurement, Contracting, and Real Property Management including the laws, rules, regulations and procedures in order to perform a wide range of actions that includes pre-award and post-award functions for leasing, grants, agreements, vehicle fleet, property, and purchasing. 2. Skill to lead, supervise, and manage a contracting staff in order to provide guidance and direction to others, evaluate performance, and resolve conflicts. 3. Skill to communicate with others in order to advise others in contract administration, prepare contract and agreement documents, explain and clarify the classes, specifications, policies, and procedures to contractors/bidders, sponsors, and federal, state, and local government personnel. 4. Skill in coordinating and organizing workload in order to meet deadlines and complete multiple tasks with changing priorities in a professional and team building environment. (Document skill as a self-starter and team member in recognizing and resolving workload needs). The vacancy announcement required applicants to submit an application package consisting of, among other things, a resume, narrative responses to the KSAs, and a current performance appraisal. The vacancy announcement informed applicants that their rating would be based on an evaluation of their experience and education as it related to the KSAs. Regarding the narrative responses to the KSAs, the vacancy announcement instructed applicants that, for each KSA, they had to prepare a written statement explaining how they met the specific KSA. In addition, the vacancy announcement contained "tips for preparing KSAs," such as including concrete examples and refraining from giving generalized statements. On August 23, 2010, Human Resources referred two qualified applicants, Complainant and someone from another agency (SE - Caucasian, 34), to S3 for selection consideration. S3 rated SE's KSA responses higher than Complainant's KSA responses. S3 asked S2 to contact the applicants' prior supervisors for a reference. S2 obtained two references for Complainant, but did not contact Complainant's most recent supervisor (S1). S2 obtained two references for SE, including one from SE's most recent supervisor. On September 3, 2010, without conducting any interviews, S3 selected SE for the position. Complainant filed an EEO complaint alleging, in pertinent part, that the Agency discriminated against him on the bases of race (African-American) and age (47) when it did not select him for the Contracting Officer position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an AJ. Telephonic Hearing Complainant timely requested a hearing and his case was assigned to an AJ in the Commission's Milwaukee Area Office in Wisconsin. An in-person hearing at the Agency's Iowa State Office in Des Moines was originally scheduled for December 14, 2011, but was re-scheduled for 8:00 a.m. on February 8, 2012. On the morning of February 8, 2012, however, the parties were informed by the AJ that the hearing would be conducted telephonically beginning at 10:25 a.m. The AJ was still in Milwaukee while the parties were at the Agency's Iowa State Office in Des Moines. At the beginning of the telephonic hearing, the AJ stated that he would explain the exigent circumstances for the telephonic hearing in his decision and asked if either party wished to go on the record with any objections. After Complainant did not object to the telephonic hearing, the AJ asked the Agency if it had any comments. The Agency's representative responded, "The Agency's only concerns are that, you know, we wanted on the record Your Honor's belief that the Commission will be okay with this telephonic hearing and that we wanted [Complainant]'s consent on the record. That's all." On August 30, 2013, the AJ issued a decision finding race and age discrimination. Regarding the telephonic hearing, the AJ stated: The hearing in his matter was originally scheduled for December 14, 2011. The hearing date was moved. The [AJ] erred when re-scheduling the hearing in this matter. On the day of the hearing, the parties had travelled to, and were present in, Des Moines, Iowa. The [AJ] was located in Milwaukee, [Wisconsin]. The [AJ] decided to go forward with a telephone hearing. Pursuant to Louthen v. U.S. Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006), the [AJ] found exigent circumstances because absent a telephonic hearing the parties, through no fault of their own, would have been financially impacted by the costs of reconvening for hearing at a later date. AJ Decision Initially, the AJ found that Complainant established a prima facie case of discrimination on the bases of race and age. Next, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, SE was better qualified than Complainant. Specifically, S3 testified that SE had better KSA responses, better communication skills, and better references. In addition, S3 testified that he his firsthand knowledge of Complainant's performance deficiencies impacted his selection decision. The AJ, however, found that Complainant established that the Agency's reason was pretextual. First, the AJ found that Complainant's qualifications were plainly superior to SE's qualifications. Specifically, the AJ determined that Complainant had more years of contracting experience, had contracting experience involving more complex matters and higher monetary amounts, and had more years of supervisory experience. Second, the AJ found that S3's testimony about why SE was better qualified than Complainant was not credible. Regarding the KSA responses, the AJ found that Complainant used concrete examples in his numbered responses to explain how he met each KSA, whereas SE wrote a general narrative without numbering or expressly addressing each KSA. Regarding communication skills, the AJ found that S3 did not have a real opportunity to evaluate them (other than through the applicants' written communications) because S3 chose not to conduct any interviews. In addition, the AJ found that, in terms of written communications, Complainant was better at communicating his abilities through his KSA responses. The AJ found, moreover, that Complainant's 2009 performance appraisal was "Fully Successful" in all elements related to communication skills. Regarding references, the AJ found that both Complainant and SE received favorable and seemingly similar references. In addition, the AJ found it significant that S2 contacted SE's most recent supervisor but did not contact Complainant's most recent supervisor (S1). The AJ inferred that S2 did not contact S1 because S1 would have provided a favorable reference that was contrary to the interests of S2 and S3 to have Complainant characterized as a poor performer. Regarding S3's first-hand knowledge of Complainant's performance deficiencies, the AJ found "telling" that S3 was inconsistent in his testimony (affidavit versus hearing) about whether such information was considered in the selection process. The AJ ordered, among other things, that the Agency pay Complainant $5,000 in non-pecuniary compensatory damages for mental anguish. Specifically, the AJ cited Complainant's hearing testimony that he was frustrated and discouraged by the Agency's actions. CONTENTIONS ON APPEAL On appeal, the Agency requests that the Commission reverse the AJ's finding of discrimination or, in the alternative, vacate the AJ's finding of discrimination and remand the matter for an in-person hearing. First, the Agency contends that the AJ abused his discretion in conducting a telephonic hearing. Specifically, the Agency argues that exigent circumstances were not present. For example, the AJ did not attempt to ascertain whether the parties would have preferred to remain in Des Moines through the evening or into the following day if he could make travel arrangements to preside at the hearing in person. In addition, the Agency argues that the AJ based his finding of discrimination in large part on a determination that S3's hearing testimony was not credible. Second, the Agency contends that substantial evidence in the record does not support the AJ's finding of discrimination. Specifically, the Agency argues that S3 did not have any discriminatory intent, as evidenced by his selection of individuals in Complainant's protected classes in the two-year period prior to the instant selection. In addition, the Agency argues that Complainant's communication skills were lacking, as evidenced by his references, a March 2010 email from S2 to S3 about him, S2's affidavit testimony, and S3's hearing testimony. The Agency moreover argues that S2 did not deliberately neglect to contact S1 for a reference in order to make Complainant less competitive for the position, as evidenced by S1's criticism of him in her (S1's) affidavit, in a January 2010 probationary or trial period report, and in a 2010 performance appraisal. The Agency further argues that the AJ was inconsistent in finding both that the Agency acted differently in contacting the applicants' references and that the references themselves were similar. The Agency additionally argues that the number of years of experience alone was insufficient to establish that Complainant's qualifications were plainly superior to SE's qualifications. Third, the Agency contends that the AJ erred in awarding Complainant $5,000 in non-pecuniary compensatory damages. Specifically, the Agency argues that the AJ did not delineate what type of discrimination he found (race, age, or both). In addition, the Agency argues that the AJ erred if he awarded compensatory damages for age discrimination, as they are unavailable under the ADEA. The Agency further argues that the AJ did not solicit written or testimonial argument or rebuttal on the issue of compensatory damages. Complainant did not submit a statement or brief in opposition to the Agency's appeal. STANDARD OF REVIEW 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. Nat'l Labor Relations Bd., 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, Ch. 9, at § VI.B. On appeal, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. Id. ANALYSIS AND FINDINGS Telephonic Hearing The Commission has held that testimony may not be taken over the telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. U.S. Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006). Upon review of the record, we find that the AJ did not abuse his discretion in conducting a telephonic hearing. Here, the record reflects that the parties convened in Des Moines on February 8, 2012 for an in-person hearing, but the AJ was unexpectedly absent (and in Milwaukee) because of a scheduling error. In addition, the record reflects that the AJ proposed to conduct a telephonic hearing in order to accommodate his unexpected absence. Moreover, the record reflects that the AJ, before he proceeded with the telephonic hearing, specifically asked the parties if they had any objections and neither party did. Based on the above, we find that exigent circumstances existed such that the AJ was warranted in conducting a telephonic hearing. Although the Agency argues that the AJ did not inquire about specific alternatives to a telephonic hearing, we emphasize that the AJ gave the parties the opportunity to comment on the proposed telephonic hearing and the Agency's only concern was that the record reflect Complainant's consent. Although the Agency argues that the AJ based his finding of discrimination in large part on credibility determinations, we emphasize that the AJ's credibility determinations were not facially of a nature that suggests they could only be reliable if the AJ had been in the same room with S3. We note that the AJ's credibility determinations were not based on S3's demeanor or tone of voice, but on comparing the substance of S3's hearing testimony to the application package documents, the selection process, and S3's affidavit testimony. Accordingly, we find that the AJ did not abuse his discretion in conducting a telephonic hearing. Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, we find that substantial evidence in the record supports the AJ's finding that the Agency subjected Complainant to disparate treatment on the bases of race and age in connection with his non-selection. Specifically, we agree with the AJ that Complainant established that the Agency's legitimate, nondiscriminatory reason for his non-selection was pretextual. In finding that Complainant's qualifications were plainly superior to SE's qualifications, the AJ relied on the applicants' resumes. ROI, Ex. 14, at 2-5; Ex. 15, at 2-7. In finding that S3 was not credible when he testified that SE had better KSA responses, better communication skills, and better references, the AJ relied on the applicants' KSA responses, the absence of interviews during the selection process, Complainant's 2009 performance appraisal, and the applicants' references. ROI, Ex. 14, at 6-9, 11-23; Ex. 15, at 8-9; Ex. 16, at 1; Aff. D, at 8-15. In finding that S3 was not credible when he testified at the hearing that his first-hand knowledge of Complainant's performance deficiencies impacted his selection decision, the AJ relied on the differences between his affidavit testimony and his hearing testimony; he did not mention it as a consideration in his affidavit testimony, but did in his hearing testimony. ROI, Aff. D, at 3; Hr'g Tr., at 83-84. Although the Agency argues that S3's selection history precludes a finding of discriminatory intent, we emphasize that S3's selection history is relevant but is not controlling. See generally EEOC Compliance Manual, Section 15, "Race and Color Discrimination," EEOC Notice No. 915.003, at 15-V.A.2 (Apr. 19, 2006) (Compliance Manual) ("The presence or absence of any one piece of evidence often will not be determinative."). Although the Agency argues that there was evidence that Complainant's communication skills were lacking, we find that the AJ reasonably relied on Complainant's 2009 performance appraisal as an indicator of his performance. While the Agency argues that S2 did not have bad intentions in not contacting S1 for a reference, we find that the AJ was entitled to draw a reasonable reference from the fact that S2 did not contact S1. Although the Agency argues that the AJ was inconsistent in his findings related to the references, we disagree; the AJ found that the Agency acted differently in who it decided to contact for references, but that the references obtained were similar in that they were all very favorable. Although the Agency argues that the number of years of experience alone was insufficient to establish that Complainant's qualifications were plainly superior, we note that the AJ did not rely on only the number of years, but also found that Complainant's contracting experience involved more complex matters and higher monetary amounts. We emphasize that the AJ found that S3's testimony, about why SE was better qualified than Complainant, was not credible. If the Agency's explanation for a complainant's treatment ultimately is not credible, that is powerful evidence that discrimination is the most likely explanation. See Compliance Manual, at 15-V.A.2. Accordingly, we find that substantial evidence in the record supports the AJ's finding of disparate treatment on the bases of race and age. Non-Pecuniary Compensatory Damages When discrimination is found, an agency must provide a complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transport. Co., 424 U.S. 747, 764 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under Title VII may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In contrast, compensatory damages are not available under the ADEA. See Sheehy v. Natl Sec. Agency, EEOC Request No. 0520100403 (Feb. 27, 2012) (citing Falks v. Dep't of the Treasury, EEOC Request No. 05960250 (Sept. 5, 1996). Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Further, compensatory damages should not "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from a complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Upon review of the record, we find that the AJ properly awarded Complainant $5,000 in non-pecuniary compensatory damages. Here, the AJ relied on hearing testimony from Complainant as objective evidence for awarding damages for mental anguish. Specifically, Complainant testified, "I've been frustrated and discouraged. I've been treated, again, differently than I believe I should be in the workplace, and -- yeah. I mean the frustration, the pain, all that kind of stuff, I mean that's just the way it has been." Hr'g Tr., at 165-66. We find that the amount awarded by the AJ is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with Commission precedent. In other cases cited by the AJ, the Commission has awarded similar amounts for emotional harm. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003) ($5,000 awarded in a non-selection case based on complainant's very limited and not detailed testimony about a sense of emptiness, discouragement, sadness, disruption of sleeping habits, and irritability); White v. Dep't of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997) ($5,000 awarded in a harassment case based on the sparseness of the evidence, such as complainant's brief testimony, pertaining to emotional distress); Benson v. Dep't of Agric., EEOC Appeal No. 01952854 (June 27, 1996) ($5,000 awarded in a denial of promotional opportunities case for insomnia, withdrawal, and irritability). Although the Agency argues that the AJ did not delineate what type of discrimination he found, we find it clear from the AJ's analysis that he found both race and age discrimination. AJ Decision, at 18-23. Specifically, the AJ initially found that Complainant established a prima facie case of discrimination on the bases of race and age, then subsequently found that Complainant established pretext. At no point in his analysis did the AJ limit his finding to only race or age discrimination. Although the Agency argues that the AJ erred if he awarded compensatory damages for age discrimination, we find no persuasive evidence that the AJ did so. AJ Decision, at 23-25. While the Agency argues that the AJ did not solicit written or testimonial argument or rebuttal on the issue of compensatory damages, we find that it was unnecessary for the AJ to do so here. Specifically, we note that it was the Agency, during its cross-examination of Complainant, who elicited his testimony about the harm he experienced as a result of the non-selection. Hr'g Tr., at 165-66. In addition, we note that the AJ gave the parties two weeks after the receipt of the hearing transcript to submit written closing arguments, and that the Agency submitted a written closing argument on March 22, 2012, but chose not to address Complainant's testimony about the harm he experienced. Id. at 170-72; Agency's Closing Argument. Accordingly, we find that the AJ properly awarded Complainant $5,000 in non-pecuniary compensatory damages. CONCLUSION The AJ did not abuse his discretion in conducting a telephonic hearing. Substantial evidence in the record supports the AJ's finding that the Agency subjected Complainant to disparate treatment on the bases of race and age in connection with his non-selection for a Contracting Officer position. The AJ did not err in awarding Complainant $5,000 in non-pecuniary compensatory damages. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission MODIFIES the Agency's final order and REMANDS this matter for further processing in accordance with this Decision and the Order below. ORDER The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued: 1. The Agency shall offer Complainant the position of Contracting Officer, GS-1102-12, or a substantially equivalent position, at the Iowa State Office in Des Moines, retroactive to the effective date of SE's selection, on or about September 3, 2010. Complainant shall have fifteen (15) days from the date of the offer to accept or reject the position. If Complainant should reject the Agency's offer of a position, the date of his rejection shall be the end date for any back pay due Complainant. 2. 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. 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." 3. The Agency shall pay Complainant $5,000 in non-pecuniary compensatory damages. 4. The Agency shall provide eight (8) hours of EEO training to S3 and S2 regarding their responsibilities under EEO laws, particularly Title VII and the ADEA. 5. The Agency shall consider taking appropriate disciplinary action against S3 and S2. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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 S3 or S2 have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 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 (G1016) The Agency is ordered to post at its Iowa State Office in Des Moines 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 was issued, 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. ATTORNEY'S FEES (H1016) 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 the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 _12/9/16_________________ 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 On January 17, 2012, the AJ granted the Agency's motion for a decision without a hearing with respect to Complainant's claims that the Agency discriminated against him: (a) on the basis of race, age, and reprisal when he received a "Fully Successful" rating on his 2010 performance appraisal; and (b) on the basis of reprisal when he was not selected for the position of Contracting Officer, GS-1102-12, advertised under vacancy announcement number IA-10-26. Complainant did not file an appeal regarding those claims. Accordingly, we exercise our discretion to focus only on the issues specifically raised on appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, at § IV.A. (Aug. 5, 2015). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720140005 2 0720140005