U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donna W.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation, Agency. Appeal No. 0720160002 Hearing No. 420-2012-00362X Agency No. 2011-24148-MARAD-01 DECISION Following its September 10, 2015 final order, the Agency filed an appeal which the Equal Employment Opportunity Commission (EEOC or 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 (AJ) finding of discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND During the relevant time, Complainant was the Parents Program Director, for the Agency's Maritime Administration, at the U.S. Merchant Marine Academy (USMMA), Office of Public Affairs, in Kings Point, New York. After creating the position, Complainant worked in the position for twelve years. In February 2009, in compliance with a Congressional funding directive, Complainant's position was turned into a 2-year term position. While initially placed in the position, at the end of two years, Complainant would have to be "converted" to become a permanent federal employee. Between February 2009 and February 2011, Complainant asked management, repeatedly, to convert the position. However, in February 2011, the position was posted under Vacancy Announcement #MARAD NNA-2001-0017. Complainant applied for the position, but was not selected. Instead, a 24 year old female, with less than three years of experience as a Logistics Data Specialist at the Department of Defense, was chosen. Believing that her non-selection was based on her age, sex, and in reprisal for prior protected EEO activity, Complainant filed a formal complaint of discrimination on August 26, 2011. Following an investigation, Complainant was provided 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, which was held by the AJ on April 9, 2013. Thereafter, on July 24, 2015, the AJ issued a decision finding that Complainant was subjected to age discrimination. As an initial matter, the AJ found that because the selectee was also female, Complainant failed to establish a prima facie case of sex discrimination. Since Complainant had no prior EEO activity, the basis of reprisal was also dismissed. However, the AJ determined that Complainant presented a prima facie case of age discrimination and, in turn, considered the Agency's proffered legitimate, non-discriminatory reasons for its actions. According to the AJ, the Agency's proffered reasons for not selecting Complainant were: the position was required to be converted to a two-year appointment; Complainant, having been put into the two-year position, would have to reapply at the expiration of the two-year term; Complainant applied and was replaced by another applicant who had priority due to an interagency transfer program (ITP). The AJ, however, found the Agency's reasons to be "implausible" and mired with "inconsistencies and contradictions." Specifically, the AJ found it unbelievable that the Agency had no discretion in making the selection. The AJ noted that the selecting official did have the ability to agree with the Executive Secretariat and find the selectee was "well qualified" for the position, when the facts indicated that she was in fact not "well qualified." Further, there was uncontroverted testimony that other employees were converted prior to their removal, yet the Agency asserted that it was unable to convert Complainant to a permanent federal employee position prior to the end of her two-year term, stating that "its hands were tied." The AJ also questioned the validity of the Agency's reasons when it appears that only one applicant was listed for the Parents Director position, and only the selectee's name appeared on the list of eligible. Complainant clearly applied for the position and was qualified, yet her name was not included on either list. Lastly, the AJ considered the selecting official's "stray remark"2 regarding Complainant's age, "tips the balance regarding pretext." The AJ awarded Complainant $194,695.00 in back pay, reasoning that she was terminated on February 14, 2011, and intended to work until her anticipated retirement in December 2014. Since Complainant would have retired at the time the decision became final, the AJ found reinstatement was not feasible and front pay would be appropriate. Complainant stated that her "anticipated 'total losses'" were $277,112.00. Therefore, the AJ ordered that she confirm her losses for back pay and front pay. If the amount was higher, then the parties were to cooperate in calculating the new amount. In the event that the total was disputed, the Agency was ordered to pay Complainant "for the undisputed amount, but not less than $227,112.00." pending a final determination. The Agency subsequently issued a Final Order and Notice of Appeal rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS 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). Disparate Treatment On appeal, the Agency argues that the "AJ demonstrated near total misapprehension of the facts and apparently conflated the two separate events as one process by which the Agency first 'terminated' [Complainant] and then 'replaced' her with a younger female applicant." It asserts that "most of the AJ's factual findings . . . are contrary to substantial evidence" and proceeds to identify a dozen of, what it believes, are erroneous findings of fact. The Agency begins by challenging the AJ's finding that Complainant held the position "for twelve years before she was terminated . . . . She had initially created the program and then ran it." However, the Agency does not dispute the years that Complainant performed the functions of the Parents Program director. Instead, it unnecessarily focuses on semantics. According to the Agency, the position was a NAFI position "which ended when [Complainant] began her term appointment as a Federal employee on February 14, 2009". The position had to be abolished, but instead of terminating Complainant she was non-competitively appointed to a two-year term on February 14, 2009. When that term expired in February 2011, Complainant's employment ended. The parties do not dispute that Complainant was appointed to a two-year term that expired. The Agency's assertions do not disturb the AJ's finding that Complainant created the position and performed the duties for twelve years. Similarly, the Agency disputes the finding that "Complainant's position was made into a two-year term to comply with a Congressional funding directive. Complainant and others had worked at [the Agency] as employees funded under NAFI, which became re-funded under appropriated funds as two-year positions . . . ." There was no "Congressional funding directive", contends the Agency, nor was the position "re-funded." We find that the Agency has failed to describe why such a distinction is relevant. If only to "demonstrate the AJ's general confusion", we are not persuaded. Repeatedly, the Agency's contentions on appeal ineffectively focus on the terms chosen by the AJ. For example, the Agency argues that it was an erroneous finding of fact to refer to the position advertised on February 3 2011 as "Complainant's position", since her term appointment did not expire until February 14, 2011. However, in the same paragraph the Agency acknowledges that Complainant applied for a "permanent position to perform the functions she had performed first as a NAFI employee and then as a Federal employee under the two-year term appointment." In other words, "her job". In another instance, the Agency challenges the AJ's finding that the selectee "replaced" Complainant. It argues that the selectee was instead hired to perform the duties that had previously been performed by Complainant before her term appointment expired. The AJ erred, states the Agency, in finding that the 24 year-old female selectee had work experience of "less than 3 years of experience as a logistics data specialist at the Department of Defense." The Agency proceeds to argue that the selectee's years and breadth of experience were not material because the case is not about comparative qualifications. The EA and selecting official deemed her to be well-qualified. She was not found to be more qualified than Complainant, as the ICTAP regulations prevented such comparison. This may be true, but does not make the AJ's finding erroneous. Further, the Agency ignores the fact that Complainant's vastly superior qualifications may lead to an inference of discrimination, particularly in light of arguments that the Agency was not completely powerless in selecting someone other than the ICTAP applicant. Next the Agency attacks the AJ's credibility determinations, arguing the AJ found the testimony of Complainant and her witness to be credible "even though each had only served as Federal employees for two years, both were vague as to time frames and other details, and both demonstrated a lack of understanding of Federal personnel practices." The Complainant incorrectly believed, maintains the Agency, that other employees were being placed into positions non-competitively, "even though their own Conditions of Employment statements" informed them in February 2009 that there was no right to further non-competitive assignment to a position. Instead, contends the Agency, the AJ should have given more weight to the testimony of the HR Director and selecting official, regarding the selecting official's inability to simply "convert" Complainant to a permanent position. Further, the Agency notes that the AJ's decision lacked any observations regarding witness demeanor or conduct, and instead simply found the selecting official was lying. In response to the Agency's appeal, Complainant argues that the Agency failed to meet its burden of showing that the AJ's factual determinations are not supported by substantial evidence. Moreover, the Agency has not, states Complainant, established that the AJ made legal determinations contrary to law. The Commission agrees. With respect to the Agency's assertion that the AJ failed to give adequate weight to the selecting official's testimony, that he lacked the discretion to convert Complainant, Complainant notes there was testimony from two witnesses that other employees were converted prior to their removal. Further, Complainant highlights the testimony relied upon by the AJ that reflected numerous inquiries Complainant made with the selecting official regarding such conversion. For example, when Complainant asked the selecting official for a copy of the selectee list, he yelled at her "You're on the list. You don't need it." A similar response was provided to Complainant's colleague. However, the list of applicants, as well as the list of eligibles, only contained the selectee's name. As noted by Complainant, "logic follows that Complainant's name should at the very least appeared on the list as an applicant if not as an 'eligible', even if ultimately the Agency had to choose the ICTP candidate." Ultimately, the Agency contends that Complainant's non-selection was not discriminatory because it was obligated to select the younger individual because she was an ICTP candidate. The HR Director's testimony, however, undermines such claim. The HR Director was asked, "[i]s there any way that the Agency - that anybody, [the selecting official] or anybody else - could have gotten around choosing an ICTAP person?" She answered, "[h]e could have." The HR Director testified that there are exceptions to the ICTAP requirement. After a careful review of the record, we discern no basis to disturb the AJ's finding of age discrimination. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. We do, however, find it is appropriate to modify the remedies awarded by the AJ. Remedies As noted above, the AJ refrained from awarding compensatory damages or attorney's fees in this case. The AJ determination was proper, as neither compensatory damages nor attorney's fees are available remedies under the ADEA. See Falks v. Department of Treasury, EEOC Request No. 05960250 (September 5, 1996). We shall now consider the award of backpay and front pay. Backpay The AJ reasoned that Complainant was entitled to back pay from the date of her termination, February 14, 2011, until the time of her planned retirement at the end of December 2014. Based on her GS-9, Step 4 annual salary of $58,848, Complainant calculated her back pay to be $194,695. Before the AJ and on appeal, the Agency reiterates its belief that Complainant is not entitled to any remedy, including back pay, because Complainant would not have remained employed by the Agency after February 14, 2011, even in the absence of age discrimination. As noted by the AJ, the finding of discrimination plainly addresses such contention. While the Agency contends that Complainant would have retired on February 14, 2014, after completing five years of service, Complainant testified that she planned to retire at the end of December 2014. The AJ found Complainant's testimony to be credible and supported by the record. We agree. The Commission finds that the AJ finding of discrimination did not encompass merely a single event of discrimination (i.e. non-selection), but also its failure to retain her in the position she had created and successfully performed for over a decade. The AJ found that the selecting official falsely responded to Complainant when she inquired about the status of her employment, and that the Agency's assertion that "its hands were tied" regarding the consideration of only the selectee. Absent the proven age discrimination, Complainant would have been in the Parents Program Director position until her retirement in December 2014. Therefore, the AJ's award of $194,694.00 was proper. Front Pay Upon review, we find the AJ improperly awarded Complainant front pay. The Commission has stated that front pay may be awarded in lieu of reinstatement when: (1) no position is available; (2) a subsequent working relationship between the parties would be antagonistic; or (3) the employer has a record of long-term resistance to anti-discrimination efforts. See Cook v. United States Postal Service, EEOC Appeal Nos. 01950027, 10955806, 01960303 (July 17, 1998) (citations omitted), request for reconsid. denied, EEOC Request Nos. 05981041, 05981061, 05981062 (Aug. 5, 1999). The fact that front pay is awarded in lieu of reinstatement implies that complainant is able to work but cannot do so because of circumstances outside of his control. Id. (citation omitted). In this case, Complainant is not seeking to be placed in the position. There has been no showing that any of these conditions pertain to Complainant's situation and thus we find she is not entitled to front pay. CONCLUSION Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby REVERSE the Agency's final action and REMAND the matter to the Agency in accordance with this decision and the Order below. ORDER Within sixty (60) calendar days of the date this decision becomes final, the Agency is ordered to take the following remedial action: 1) Provide Complainant a back pay award in the amount of $194,694.00 within sixty (60) days of the date this decision becomes final. 2) Provide EEO training to the responsible selecting officials and human resources staff involved in this matter, focusing on the Agency's responsibilities under the ADEA. 3) Post the notice referenced in the paragraph below entitled "Posting Order". 4) Submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision". POSTING ORDER (G0914) The Agency is ordered to post at its U.S. Merchant Marine Academy (USMMA), in Kings Point, New York copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 tends 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 9-18 (Nov. 9, 1999). 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations August 17, 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 According to the AJ, while Complainant was talking on the phone to a parent, and said something about being born in that century, the selecting official remarked, "I knew you were old but not that old." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720160002 2 0720160002