Geraldine G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 0720140039 Hearing No. 443-2013-00032X Agency No. 66-000-0014-12 DECISION Concurrent with its September 18, 2014, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's finding of discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission REVERSES the Agency's final order. ISSUE PRESENTED The issue presented is whether the Administrative Judge properly found that Complainant had established that she was discriminated against based on her age when she was not selected for a Postal Inspector Team Leader position, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Inspector in the Agency's Postal Inspection Service, Denver Division, at the Processing & Distribution Center (P&DC) in Des Moines, Iowa. She applied for a position as a Postal Inspector Team Leader, in St. Paul, Minnesota. She was not selected for the position. On August 11, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (50) when, on April 10, 2012, she interviewed for the position of Postal Inspector Team Leader, Level 14, and during the interview she was questioned regarding her years of eligibility and retirement. Subsequently, on April 12, 2012, she learned she was not awarded the position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on June 18, 2013, at which three witnesses testified. He issued a decision on August 6, 2014. In his decision, the AJ found that Complainant was a Postal Inspector, Level 13, and had been a Postal Inspector for 17 years. In March 2012, Complainant was one of five applicants for the position of Postal Inspector Team Leader, Level 14, in St. Paul, Minnesota. The Inspector-In-Charge (IIC) of the Denver Division was the selecting official. He reviewed the applications, conducted the interviews, and made the selection for the position. Complainant was 50 years old at the time of the interview. Postal Inspectors have a mandatory retirement age of 57. The AJ found that Complainant testified that the IIC said to her in the interview, "I don't think you are supposed to ask this, but how many years of eligibility do you have left before you retire?" Complainant responded with her age and the statement that she would retire in less than seven years. Another applicant/interviewee (App-1) for the position testified that the IIC had favorably commented on his age by stating that he liked that there were still nine years left during which App-1 could advance. App-1 testified that the IIC commented during his interview that he was confused as to why Postal Inspectors who were close to retirement would apply for promotions, and that he was not sure if these employees were applying for the good of the Agency or in order to get a (funded) move to another location out of it. When testifying at the hearing, the IIC denied making the statements attributed to him by Complainant and App-1. The IIC stated that Complainant mentioned in her interview that she wanted to retire in Minnesota, so he merely asked a follow-up question as to when she would retire. He denied asking any applicant about their eligibility for retirement. The IIC selected another applicant for the position based on her application and interview scores. The selectee was 34 years old at the time of her selection. The AJ found that Complainant possessed more experience than the selectee. The selectee had been a Postal Inspector for nine and one-half years at the time of the selection, and had the second-lowest years of service of the applicants. Complainant had been a Postal Inspector for 17 years. The AJ also found that Complainant had more upper-level experience than the selectee, having been a Level 13 Inspector for almost five years longer than the selectee. The AJ found that, of any of the applicants, the selectee had the most years remaining before reaching mandatory retirement age. The AJ concluded that Complainant had shown that she had been discriminated against because of her age when she was not selected for the position. He found that Complainant had presented direct evidence of age discrimination, and had shown that age animus permeated the selection process. He found that the IIC had made statements during the interview process that indicated that he did not think employees close to retirement were applying for promotions for the good of the Agency. The AJ found that the IIC had directly asked Complainant how long until she was to retire in order to ascertain her age. He stated, "There can be no doubt that [the IIC] considered how long an applicant had before reaching age 57 as a factor in the selection. Basing an employment decision on how much time an employee has before reaching the mandatory retirement age is considered direct evidence of age discrimination." In the alternative, the AJ found that Complainant had put forth enough evidence to prevail under the McDonnell Douglas burden-shifting method. He found that Complainant had established a prima facie case of age discrimination in that she was over 40 years of age, was qualified for the position, applied, and was not selected, and a person substantially younger than herself was selected instead. The Agency articulated a legitimate, nondiscriminatory reason for its selection, claiming that it had selected the best-qualified candidate for the position. It entered evidence into the record which showed that the selectee scored the highest on her application and in her interview, as scored by the IIC. The AJ then concluded that Complainant had shown that the Agency's reasons were pretext for age discrimination. He found that Complainant had shown that the IIC, the sole management official responsible for rating the applications, and conducting the interviews, harbored ageist animus. The IIC asked Complainant directly how many years she had left before retirement, and told App-1 that he believed people close to retirement who applied for promotions were doing so for selfish reasons and not for the good of the Agency. The AJ found that the IIC stated to App-1 that he liked how many years App-1 had left to advance. The AJ concluded that the IIC's ageist motivations tainted the process, and that Complainant's years of service and qualifications made her a better-suited candidate for the position than the selectee. The AJ ordered the Agency to promote Complainant to the position of Postal Inspector Team Leader, Level 14, in the St. Paul, Minnesota, facility or some other mutually agreeable position/location within 30 days. He also ordered the Agency to determine and pay Complainant back pay and other benefits. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged, and filed the instant appeal. CONTENTIONS ON APPEAL In its brief in support of its appeal, the Agency disputed both the AJ's factual findings and his conclusions of law. It argued that the AJ's findings were not supported by substantial evidence in the record, and that the AJ erred by not making any specific credibility findings. The Agency took issue with the AJ not spelling out exactly which witness(es) he found to be more credible, Complainant and App-1 or the IIC, and why. The Agency argued that the AJ engaged in "rank speculation" with his conclusions regarding the effect of the IIC's alleged question about retirement on Complainant's subsequent performance in the interview. The Agency further disputed the AJ's conclusion that the IIC had made "ageist" comments when he inquired how many years Complainant had left before retirement, calling it an "innocuous question." The Agency also argued that Complainant had not shown the Agency's legitimate, nondiscriminatory reasons to be pretext for age discrimination because she had not shown that she was the plainly superior candidate as compared to the selectee, and that the AJ's conclusion that Complainant possessed more experience was without foundation in the record. As to the AJ's conduct of the hearing, the Agency argued that the AJ improperly curtailed its line of questioning with App-1, given that App-1 had also filed an EEO complaint with respect to his non-selection for the same position, thereby depriving the Agency of an opportunity to fully explore App-1's motivation for testifying in support of Complainant. Finally, the Agency argued that the AJ was erroneous in his conclusion that Complainant established pretext because she had not presented evidence that any "age consideration had a determinative effect on the selection." In her statement in opposition to the Agency's appeal, Complainant urged the Commission to reject the Agency's final order and affirm the AJ's finding of age discrimination. Complainant argued that the AJ's credibility determinations were clear from his decision, and the absence of a described foundation for finding the testimony of Complainant and App-1 to be more credible was not in error. Complainant disputed the Agency's characterization of the AJ's conclusion of the effect of the retirement age question on Complainant's performance in the interview as "rank speculation." Complainant's brief cited testimony of Complainant which was supportive of the AJ's conclusion. Complainant noted that the Agency did not dispute the AJ's finding that the IIC actually asked Complainant how many years until she would have to mandatorily retire. Given that admission, she argued that the AJ had ample evidence to support a finding that there was direct evidence of discrimination. Complainant alternatively argued that the AJ's finding that she had proven the Agency's reasons for her non-selection to be pretextual was also supported by the record. Finally, Complainant argued that she was not required to prove that age was a but-for cause of her non-selection because Section 633a of the ADEA provides that "All personnel actions...shall be made free from any discrimination based on age," which is a broader prohibition than that applied to private sector employees. Complainant requested that the Commission deny the Agency's appeal and that it award any "remedies available to those opposing frivolous appeals." 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. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). 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 EEOC Management Directive for 29 C.FR. Part 1614 (MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Direct Evidence The AJ found that the statements made by the IIC in the interview process, as attributed to him by Complainant and by App-1, constituted direct evidence of age discrimination. The AJ found that Complainant testified that the IIC said to her in the interview, "I don't think you are supposed to ask this, but how many years of eligibility do you have left before you retire?" We find that given that the Postal Inspection Service, as a law enforcement agency, has a mandatory retirement age of 57, a question like this is inextricably linked to an employee's age. This is distinguishable from asking this question of other non-law enforcement federal employees who may retire from employment at various ages and years of service. We credit the AJ's determination that Complainant and App-1 were credible in their testimony on this point. We also credit the AJ's assessment that the question, asked of Complainant at the beginning of her interview, would have been enough to affect her performance during the rest of the interview, and find support for that assessment in the record. The IIC admitted asking the question; although the Agency tried to characterize it as "innocuous," we find that it was anything but. Disparate Treatment - Age In general, disparate treatment claims, such as the matter before us, are examined under a tripartite analysis whereby Complainant must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Furnco Constr. Corp. v. Waters. 438 U.S. 567 (1978); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the analytical framework described in McDonnell Douglas to an ADEA disparate treatment claim). 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). If the agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the agency's reasons were a pretext for discrimination. At all times, complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). The Commission has long held that the rules laid down by the U.S. Supreme Court in McDonnell Douglas Corp. in proving a Title VII claim are also applicable in proving an age discrimination claim. Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Kentroh v. Frontier Airlines. Inc., 585 F.2d 96 (10th Cir. 1978); Cova v. Coca-Cola Bottling Co., 574 F.2d 958 (8th Cir. 1978). In Gross v. FBL Financial Services. Inc., 557 U.S. 167 (2009), the Supreme Court reviewed the statutory language of the ADEA's prohibition of discrimination "because of" age, set forth in 29 U.S.C. § 623(a)(1), which applies to private sector employers. Based on this language, the Court concluded that for a plaintiff to ultimately prevail in a private-sector ADEA claim, he or she must demonstrate that "but for" age the alleged discriminatory employment action would not have occurred. The Court then concluded that this "but for" causation requirement precludes application of a mixed-motive analysis to claims arising under 29 U.S.C. § 623(a)(1). However, another section of the ADEA applies to the prohibition of age discrimination in the federal sector. See 29 U.S.C. § 633a(a) (all personnel actions in federal employment "shall be made free from any discrimination based on age"). Contrary to the holding in Gross, Fuller v. Gates, Secretary of Defense concluded that Gross applied to private employment, and not employment by the federal government. See Fuller v. Gates, Secretary of Defense, 2010 WL 774965 (E.D. Tx. March 1, 2010). The court in Fuller found that the different language in the two sections of the ADEA demonstrated that Congress intended different meanings. Id. Further, the Fuller court determined that based on its plain meaning, "free from any" must be construed as being broader than "because of," such that the "mixed motive analysis" continues to apply in age discrimination claims against the federal government. Id. We find that there is substantial evidence in the record to support the AJ's finding that Complainant had established a prima facie case of age discrimination. We also find that there is substantial evidence in the record to support the AJ's finding that Complainant established that the Agency's reasons for her non-selection were pretext for discrimination. The AJ heard credible testimony that the IIC asked Complainant about when she would be required to retire, given the mandatory retirement age of 57 in the Postal Inspection Service. The AJ also heard credible testimony that the IIC made statements to App-1 regarding applicants who were close to retirement age who had what he thought were questionable motives for applying for positions which would enable them to have the Agency pay for a move to a different location or which might not be in the best interest of the Agency given the short amount of time the applicant would encumber the position. The AJ determined that Complainant had shown that she was the plainly superior candidate through her more extensive experience at the Agency. We find no reason to disturb the AJ's findings on appeal, and affirm his finding that Complainant was discriminated against based on her age. 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 rejection of the AJ's finding of discrimination. ORDER The Agency is ordered to take the following remedial action within sixty (60) days of the date this decision becomes final: 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 sixty (60) calendar days after the date this decision becomes final. 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. To the extent it has not already done so, the Agency shall offer Complainant a position as a Postal Inspector Team Leader, Level 14, in St. Paul, Minnesota, or to a substantially equivalent position at a mutually agreed upon Agency location. Complainant has fifteen (15) days to accept or decline the Agency's offer of reinstatement. If Complainant should decline the Agency's offer of placement in the position, the date of her declination shall be the end date for any back pay due Complainant. 3. The Agency shall provide training to the management officials in the Denver Division of the Postal Inspection Service regarding their responsibilities under EEO laws and regulations. 4. The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. 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 any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 5. The Agency shall post a notice in accordance with the paragraph below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay 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 St. Paul, Minnesota facility 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (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. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations June 3, 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 0720140039 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720140039