U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kenny C.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 0720150030 Hearing No. 520-2012-00692X Agency No. 2011PEPA035 DECISION Following its June 8, 2015, final order, the Agency filed a timely 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) 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. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. Specifically, the AJ issued a partial summary judgment which found that Complainant did not show that he was subjected to discrimination with regard to one of two non-selections. The AJ, however, after a hearing, found that Complainant demonstrated that he was subjected to race discrimination with regard to his non-selection for a GS-13 Supervisory Criminal Investigator position. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final order. ISSUE PRESENTED The issue presented in this case is whether there is substantial evidence to support the AJ's finding of discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator, GS-12 at the Agency's Pentagon Force Protection Agency in Arlington, Virginia. On August 4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) when (1) he was not selected for an Assistant Special Agent in Charge Supervisory Criminal Investigator, GS-13 position. Complainant later amended his complaint to include that he was also subjected to reprisal for prior protected EEO activity when (2) he was not selected for a Criminal Investigator (non-supervisory), GS-13 position. At the conclusion of the investigation, the Agency provided Complainant a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Prior to the hearing, the Agency filed a motion for summary judgment. Complainant responded to the Agency's motion. The AJ found that with respect to claim number 2, the record was adequately developed and no material facts existed. Therefore, the AJ granted the Agency's summary judgment request with regard to claim number 2 finding that Complainant did not demonstrate that he was subjected to discrimination with regard to this claim. With regard to claim number 1, the AJ held a hearing on January 21, 2015, and issued a decision on April 24, 2015. The record revealed that Complainant applied for the position of Assistant Special Agent in Charge/Supervisory Criminal Investigator, GS-13, and was rated qualified. Afterward, he was referred for consideration. The vacancy announcement stipulated that the "incumbent must take and pass annual medical and physical fitness examinations." Complainant's second-line supervisor (S2) served as the selecting official for the position. A panel was not utilized during the selection process. Complainant and another employee C-2 (white) were both referred to the Director (S3) for final approval. Complainant was S2's choice for the position. Thereafter, S2 was told by S3 that he could not select Complainant because he had not passed his annual physical fitness exam (PFE) during the prior performance year.2 Several witnesses testified that as a part of their annual requirements, all investigators and members of the Agency's law enforcement division were required to take and pass an annual physical fitness examination. In the instant case, the selecting officials considered the last physical examination in the applicant's performance record. S3 suggested another candidate C-1 (white). C-1 had not applied for the position but it was known that he was interested in promotion. After C-1 submitted an application, it was determined that he did not meet the numerical qualification; therefore, S3 suggested that the number be lowered so that C-1 could be referred for selection. S3 argued that C-1 was only three points below the established cut-off point, and as such an arbitrary cutoff score should not be applied. Thereafter, C-1 and C-2 were both referred by S3 to S3 for a final selection. C-1 was selected. The AJ found it noteworthy that there were a number of candidates that fell below the cut off, but no other candidates were added as a result of the lowered acceptable benchmark score. As such, because of the way C-1 was added to the selection certificate and thereafter selected, the AJ found that it appeared he was pre-selected by S3. The AJ found that although pre-selection was generally not problematic, here it supported Complainant's contentions about being bypassed due to racial bias. Specifically, in support of his claims that race was a factor in his being bypassed, Complainant pointed out that although he was initially selected for the position he was denied the opportunity to be promoted because S3 had a practice of only choosing white males for promotions to higher level/supervisory positions. With respect to Complainant's assertion that he was unfairly bypassed for this position based upon discriminatory animus, he indicated that he has been in the criminal investigator service for over 16 years. As a result of his extensive career, Complainant asserted that he was more qualified than the eventual selectee. Complainant maintained that he performed the duties identified in the vacancy announcement daily, including serving as the Acting Assistant Special Agent and supervising the work of other investigators. Complainant argued that by contrast, C-1 had only worked in the criminal investigator job series for approximately five years, and his duties were primarily administrative. Several witnesses testified that Complainant was highly regarded and respected for his work as an experienced investigator. He was consulted for advice and often viewed in a supervisory capacity. A former Director testified that Complainant was viewed as a senior agent with extensive field experience. He explained that Complainant's direction and techniques were often utilized for guidance and reference purposes. The former Director stated that during his tenure with the Agency, he made several attempts to promote Complainant, but those efforts were thwarted usually by S3, and eventually Complainant's career was hindered. The former Director indicated that he did not have much experience with C-1 but believed that his duties were primarily administrative. The former Director also maintained that S3 had a personal relationship with C-1 and thought that may have been why he chose him. Further, the former Director indicated that after Complainant failed his PFE, S3, appeared very angry and stated "I want his gun and badge taken from him." Such an extreme measure was highly unusual, as there were protocols in place to follow when an employee did not pass their PFE. Complainant eventually got his gun and badge back. S2 testified that he recommended Complainant for the position because he believed that he was the best candidate. He had worked with Complainant for approximately 6 years and relied on his first-hand knowledge/experience when tasking him to serve in an acting supervisory role on numerous occasions. In fact, S2 described Complainant's work performance as "spectacular." The AJ found that there were several factors that challenged the legitimacy of the Agency's explanation that Complainant was not promoted because he did not pass his PFE. First, the AJ noted that S2 and the former Director testified that there would not be a significant change in the physical requirements of Complainant's position and the role of Supervisory Criminal Investigator. In fact, it would be more administrative work and less field work. Next, the AJ found it inconsistent that the selection criterion was changed for one candidate but not for Complainant. Moreover, the AJ found it equally troubling that when S3 ordered S2 to choose another candidate he was not free to review all remaining candidates on the selection certificate, many of whom met all of the initial criteria, but instead he was seemingly mandated to choose a particular candidate. Complainant argued that the reason he and C-1 were treated differently was because he was African American. Complainant also testified that S3 made several comments that revealed his discriminatory intent, such as; "[Complainant's name], is he the black one or white one?" He also indicated that he was seeking to change the "face" of the Agency. The AJ found that while these comments alone may not have risen to the level of discriminatory intent, when considering how the selection was handled, discriminatory animus was more plausible. Finally, the AJ found it noteworthy that despite his extensive involvement in this selection process, S3 did not appear and testify about his actions. The AJ found that there were considerable gaps in S3's affidavit testimony, and Complainant presented testimonial and documentary evidence that significantly called into question S3's credibility. Without S3's appearance and testimony, the AJ credited Complainant's account. The AJ found that the Agency had failed to proffer a legitimate, non-discriminatory reason for its actions as it related to claim number 1. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant established that the Agency subjected him to discrimination. This appeal followed. CONTENTIONS ON APPEAL On appeal, the Agency argues, among other things, that the AJ erred in finding that it subjected Complainant to discrimination when he was not selected for the position of Criminal Investigator, GS-13. The Agency contends that the AJ was unorganized and was not able to locate the hearing record and as such she may have relied on evidence that was not admitted into evidence. Further, the Agency argues that the decision to not select Complainant had nothing to do with his race. Simply, Complainant was not selected because he did not meet the requirement of having passed a physical exam in the prior year. The Agency maintained that Complainant did not show that any other employee who did not pass a physical in the prior year was promoted. In response, Complainant contends, among other things, that the AJ's decision should be upheld as the Agency has offered no evidence which showed that the AJ erred. Complainant argues that the Agency's argument that the AJ was unorganized is disingenuous as they participated in the hearing. Complainant contends that he has been employed by the Agency since 1995 as a Police Officer and now as a Criminal Investigator. Complainant maintains that he was not hired under the requirements of passing a Physical Efficiency and Battery (PEB) test. He indicated that although he did not pass the PEB, he received upward promotions to his journeyman level grade. As a result of his knowledge, skills, and abilities, he was accreted to a GS-12, from the then journeyman grade of GS-11. Complainant argues that the Agency continues to reprise against him. He maintains that since 2007, he had performed supervisory duties to include; granting leave, preparing evaluations, training, counseling criminal investigators, scheduling criminal investigators, preparing memorandums to his supervisors for disciplinary actions against the criminal investigators, and various other supervisory and administrative duties. Once his complaint was submitted, he was relieved of those duties. Complainant also contends that since his complaint, he has been subjected to bullying, an investigation, and interviews by two GS-15 investigators. Further, Complainant asserts that only white employees have been promoted since he filed his complaint. Moreover, Complainant maintains that S3 used the PEB as a rouse to disguise his actions, and that he has a history of ignoring the laws and rules when he was found to practice prohibited personnel actions. Finally, Complainant maintains that not only was he wrongly denied a promotion to the GS-13 level, but consequently he was denied a promotion to the GS-14 position due to the Agency's discrimination, and requests further consideration for a higher-grade increase to the GS-14 level and more punitive damages. 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 110, Chapter 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Neither the Agency nor Complainant have appealed the AJ's determination regarding claim number 2; accordingly, we AFFIRM the AJ's finding of no discrimination. On appeal to the Commission, the burden is squarely on the party challenging an Administrative Judge's decision to demonstrate that the Administrative Judge's factual determinations are not supported by substantial evidence. See id. at Ch. 9, § VI.C. In this case, this means that the Agency has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence"). We agree with the AJ that Complainant established a prima facie case of race discrimination. We also agree with the AJ that the Agency failed to articulate legitimate, nondiscriminatory reasons for its actions. In this regard, we note the AJ's findings with respect to the arbitrary waiver of the qualifications standards concerning C-1, who initially was not a candidate for the position, but the rigid application of qualification standards when it came to Complainant. Even if we were to find that the Agency met its burden of providing a legitimate, non-discriminatory reason for the non-selection, we would find evidence of pretext in light of the evidence establishing that Complainant was considered the best candidate by S2, who described his work performance as "spectacular," and who often placed him in a supervisory capacity. The record shows that Complainant was better qualified than C-1 and that only discriminatory animus can be inferred by his non-selection. We agree with the AJ that the record supports Complainant's pretext contentions that he was purposefully excluded from the position by S3 because of his race. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we conclude that substantial evidence in the record supports the AJ's determination that the Agency failed to proffer a legitimate, non-discriminatory reason for its actions as it related to claim number 1, and that Complainant established discrimination by the Agency. We further find that the Agency has not offered any persuasive evidence which demonstrates that the AJ erred with regard to her findings of discrimination or with respect to the remedial relief that she provided. With regard to the Agency's contentions on appeal, we find that it has not established that the AJ's determinations are not supported by substantial evidence in the record. Speculating that the AJ may have relied on evidence that was not submitted during the hearing does not establish that she erred in her findings. We also note the Agency's position that no one was promoted who had not passed their physical in the prior year. The AJ's primary finding was that the selection process utilized here was, contrary to the Agency's assertions otherwise, arbitrary, and was not based on established standards. When S3 wanted to ensure that someone was selected whom he approved of, he appeared to pre-select C-1, an individual who initially had not applied for the position and who even failed to make the cut-off score that was established. Combining S3's apparent preselection with testimony supporting a determination that he was racially biased against Complainant, we find it reasonable to conclude, like the AJ, that the Agency failed to proffer a legitimate, non-discriminatory reason for its actions as it related to claim number 1. With regard to Complainant's claim that he is being subjected to acts of reprisal, he is advised to contact an EEO Counselor immediately. Finally, regarding Complainant's request for punitive damages, we note that we note that punitive damages are not available to federal employees. See Jones v. Department of Health and Human Services, EEOC Request No. 05940377 (Jan. 23, 1995) (citing Graham v. U.S. Postal Service, EEOC Request No. 05940132 (May 19, 1994)). CONCLUSION Accordingly, we REVERSE the Agency's final decision which respect to its determination that the AJ erred in finding discrimination with regard to claim number 1. ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision is issued: 1. The Agency is ordered to pay Complainant $38,750 in compensatory damages. 2. The Agency shall place Complainant in the same or similar position as the Assistant Special Agent in Charge Supervisory Criminal Investigator position that he was not selected for in Claim 1, and pay him full back pay, including any and all benefits that Complainant would have received, should he have been selected for this position on June 1, 2011. 3. In the event that S3 remains employed by the Agency, he shall be provided a minimum of eight (8) hours of EEO training with respect to Title VII to ensure that acts of discrimination do not recur. The Agency shall address S3's responsibilities with respect to eliminating discrimination in the workplace and all other supervisory and managerial responsibilities under equal employment opportunity law. 4. The Agency shall consider taking appropriate disciplinary action against S3. 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 take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S3 has has left the Agency's employ, the Agency shall furnish documentation of his departure date(s). POSTING ORDER (G0617) The Agency is ordered to post at its Pentagon Force Protection Agency facility in Arlington, Virginia 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 __8/29/17________________ 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 The record notes that Complainant did not pass his PFE because of his weight. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150030 2 0720150030