U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marine V., Louvenia S., Aline A., Doretta F., Isabel F., Jutta A., Allegra P., Dominica H.,1 Complainants, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal Nos. 0720170001, 0720170002, 0720170003, 0120170004, 0720170005, 0720170006, 07201700072, 0720170008 Hearing Nos. 520-2012-00023X, 520-2012-00024X, 520-2012-00021X, 520-2012-00020X 520-2012-00019X, 520-2012-00022X, 520-2012-00014X, 520-2010-00008X, 520-2012-00013X Agency Nos. NY-09-0666-SSA, NY-09-0664-SSA, NY-09-0663-SSA, NY-09-0721-SSA, NY-09-0671-SSA, NY-09-0659-SSA, NY-09-0665-SSA, NY-08-0933-SSA NY-09-0662-SSA DECISION Concurrent with its 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'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 and REMANDS the complaint for further action by the Agency. ISSUE PRESENTED The issue presented is whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ) conclusion that Complainants established that they were subjected to discrimination based on their age when they were not selected for Claims Representative (CR) positions with the Agency. BACKGROUND At the time of events giving rise to this complaint, Complainants worked as Service Representatives (SR), Teleservice Representatives (TSR), or Senior Case Technicians (SCTs) at the GS-8 grade level. Complainants worked at various Agency offices located throughout New York and New Jersey within its Region 5. In early 2009, the Agency announced that it would be hiring Claims Representatives (CR) at the GS-5/7 grade level in certain district offices in New Jersey. The Agency specifically advertised the vacant GS-5/7 grade level CR positions under vacancy announcement numbers SN-243013-NY-09-027, SN-243038-NY-09-035, SN-243052-NY-09-037, SN-243184-NY-09-038, 243348-NY-09-039, and SN-243359-NY-09-040. Complainants, who all worked at the GS-8 level, were willing to accept a downgrade to the GS-7 grade-level if selected because the position offered advancement potential up to the GS-11 level. Complainant 2's Report of Investigation (ROI 2), Ex. 6, at 4. Complainants also indicated that the Agency previously had placed them on best qualified lists for previously announced CR positions at the GS-9 level. Id. at Ex. 6, at 3. The ages of each Complainant, along with each CR vacancy announcement for which each applied, are as follows: Complainant 243013-NY-09-27 243052-NY-09-037 243184- NY-09-038 243348-NY-09-039 243359-NY-09-040 1 - age 40 X X X 2 - age 52 X X X 3 - age 43 X X X 4 - age 42 X X 5 - age 51 X 6 - age 42 X X 7 - age 46 X X X 8 - age 46 X Each vacancy announcement for the CR position specifically noted that the applicant must pass a written test called the Administrative Careers with America (ACWA) exam in order to be found minimally-qualified and eligible. ROI 2, Ex. 13a. After the applicants, including Complainants, took the ACWA exam, the Agency sent the exams to the Office of Personnel Management (OPM) for scoring. Id., Ex. 7, at 9. To pass the AWCA test and be eligible for selection for the CR positions, each applicant was required to achieve a score 70 or higher. However, Complainants 1 through 6 were advised by OPM in April 2009 that they had failed the exam, and that OPM therefore had marked them as ineligible for the CR positions. Complainants 7 and 8 both passed the ACWA exam with scores of 81.5 and 80.5, respectively, and therefore were marked as eligible by OPM for the CR positions. Nevertheless, neither Complainant 7 nor Complainant 8 received an interview or were considered further for any of the vacancies at issue. According to the Agency, officials did not schedule Complainants 7 and 8 for interviews and their names did not appear on the Certificates of Eligibles for the vacancies because their ACWA scores were too low. The ages of the selections for the vacancies are as follows: Vacancy No. Number of Employees selected Age(s) of Selectee(s) SN-243013-NY-09-027 1 The only selectee was over the age of 40. SN-243052-NY-09-037 4 One selectee was over the age of 40. SN-243184-NY-09-038 5 All selectees were under the age of 40. SN-243348-NY-09-039 2 One selectee was over the age of 40. SN-243359-NY-09-040 4 One selectee was over the age of 40. Complainant 1's Report of Investigation (ROI 1), at 25-26 and ROI 2, at 15-17 Procedural Background In September 2009, Complainants filed EEO complaints alleging that the Agency discriminated against them on the basis of age3 when they were not selected for CR positions in New Jersey district offices in May 2009. The Agency conducted investigations, and Complainants thereafter requested a hearing before an EEOC Administrative Judge (AJ). Subsequently, the Agency filed a Motion for Remand on the ground that Complainants' claims relating to the ACWA exam fell within the jurisdiction of the Merit Systems Protection Board (MSPB). The Agency specifically argued that the OPM was responsible for the administration of the ACWA exam, and that the MSPB has jurisdiction over such employment practices administered by the OPM. On February 6, 2012, the AJ issued an Order denying the Agency's Motion for Remand. Therein, the AJ reasoned that Complainants' contentions regarding the ACWA exam were included in affidavits over one year after they filed their complaints, and that Complainants did not specifically include a claim challenging the employment practices administered by OPM. The AJ indicated that Complainants' claim is that the Agency improperly opened the positions at issue to candidates externally rather than promote internally. The AJ noted that, had the Agency not opened the vacancies to external applicants, it would not have been bound by OPM regulations requiring the ACWA exam. The AJ further noted that, even assuming the cases herein are mixed-case complaints, the Agency accepted Complainants' complaints as non-mixed, advising them of the right to request a hearing before an EEOC AJ. The AJ therefore found that the instant matter had become firmly enmeshed in the EEO process and that it would delay justice and create unnecessary procedural complications to remand the matter to the MSPB. On February 15, 2012, the Agency submitted a letter advising the AJ that the Commission had recently remanded two other identical cases (Nos. 530-2011-00306X and 530-2011-00305X) as mixed-case complaints for adjudication before the MSPB. The Agency contended that the two remanded cases before the MSPB could potentially impact the outcome of the instant case, and requested to stay the hearing. The AJ nevertheless denied the stay and moved forward with the case, holding a hearing on July 11 through July 12, 2012, and April 7 through April 9, 2014. AJ's Decision The AJ issued her decision on September 9, 2016, finding that Complainants established that they had been subjected to discrimination based on their age when they were not selected for CR positions under one of the above-listed vacancy announcements. The AJ first found that Complainants established a prima facie case of age discrimination, as they were all over the age of 40, were qualified for the CR positions at issue, and were treated adversely by the Agency in not being selected. In finding that Complainants raised an inference of discrimination, the AJ reasoned that the Agency used the ACWA exam as the sole method to select candidates, which excluded internal candidates who were older than most of the selectees. The AJ also noted that even the two Complainants who did pass the ACWA exam were not considered for any of the vacant CR positions. The AJ further found that the Agency failed to meet its burden to establish a legitimate, nondiscriminatory reason for its actions. The AJ specifically noted that the Agency only claimed that Complainants were not selected based on their ACWA scores, but did not sufficiently explain why they choose to administer the ACWA exam. In so finding, the AJ further noted that the Agency's explanation that other offices previously obtained good results in using the ACWA exam was not sufficient for the Agency to meet its burden to articulate a legitimate, nondiscriminatory reason.4 The AJ next assumed, without finding, that the Agency did articulate a sufficient nondiscriminatory reason for its actions, but that Complainants nevertheless established that the Agency's proffered explanation was pretext for age discrimination. In finding that Complainants established pretext, the AJ first noted that the Agency evaluated Complainants solely based on their ACWA exam score and did not consider their qualifications, job performance, appraisals, or experience with the Agency. The AJ secondly observed that the Agency rejected its own regularly-used means of assessing promotional qualifications for CRs and ignored merit system principles. In so finding, the AJ noted that the Agency could have used an ACWA questionnaire instead of the ACWA exam. The AJ noted that the use of the ACWA questionnaire would have allowed internal candidates to submit their experience, performance evaluations, and their overall performance history with the Agency. In further finding that the basis for the Agency's use of the ACWA exam was a pretext for age discrimination, the AJ observed that employees' performance histories previously had been used to promote internal employees into the CR positions by the Claims Representative Examination District Office (CREDO) process. The AJ noted that the CREDO process is the Agency's internal promotion mechanism where internal employees are promoted to CR positions, which the Agency had used regularly from about 2000 to 2009. The AJ found that hearing testimony reflected that the use of CREDO was intentionally reduced with the aging of internal employees, and that Complainants were actively discouraged from obtaining promotions to the CR positions. The AJ specified that the District Manager of the Agency's Egg Harbor Township office had informed employees at a staff meeting in early 2009 that there would be external position openings for CRs, but that internal employees were not eligible to apply. The AJ also noted that the Agency disallowed the use of CREDO until 2012, after the filing of the instant EEO complaints. The AJ found that the Agency's reasons for abandonment of the previous methods of promotion where experience and merit were once considered supported a finding that age discrimination was the true motivation behind the Agency's actions. The AJ also noted that the Federal Career Intern Program (FCIP), used to recruit younger employees, was implemented after the ACWA had already been used. The AJ further noted, however, that instead of reaching out to the two Complainants who had passed the ACWA exam to fill the still-vacant CR positions, the Agency instead used the FCIP to do so. The AJ found the Agency's filling of still-vacant CR positions through an internship program to hire primarily young applicants newly out of school to be more evidence of pretext. In addition, the AJ noted that the Supervisory HR Specialist in the personnel office had testified that the Agency was looking for "new blood" and seeking "energetic" employees. The AJ also did not find credible the Agency's explanation that it could not reach the Complainants who passed the ACWA exam on the scoring ranking list for an interview due to time constraints. In so finding, the AJ noted that hiring current internal employees would have been less cumbersome because they did not require interviews as external candidates did, as it was assumed that internal employees had the interpersonal skills necessary to do their jobs. The AJ therefore found pretextual the Agency's reasoning that it did not have enough time to interview the Complainants who passed the ACWA exam, because interviews for internal candidates were not needed. The AJ additionally noted that several other higher-scoring candidates had canceled their interviews, which should have freed up some time to interview the two Complainants who passed the exam. The AJ also noted that extensive documentation, like background checks, was not needed to hire internal employees, unlike external hires. The AJ further observed that the Deputy Area Director contradicted other officials by testifying that there actually were no time constraints in the selection process. In further finding pretext, the AJ held that the complete records of the external applicants hired were of questionable accuracy, and that the Agency most likely hired some external candidates without even requiring the ACWA exam. In sum, the AJ found that the Agency chose to use the ACWA exam and a later cut-off score of those who passed the exam in order to exclude Complainants based on their ages.5 CONTENTIONS ON APPEAL Agency's Brief on Appeal On appeal, the Agency initially asserts that the AJ erred in denying its Motion for Remand for processing the instant case as a mixed-case complaint. The Agency argues that, because the ACWA is an OPM-administered employment practice, this matter should be processed as a mixed-case complaint. The Agency indicates that the OPM was responsible for the creation of the ACWA, its development, and the grading of its exam scores, and contends that the MSPB has jurisdiction over challenges to the ACWA exam. The Agency further indicates that two previous AJs in different cases found that this matter, relating to the instant vacancies concerning the ACWA exam, rested with the MSPB and remanded those cases for processing as mixed-case complaints. For one of the cases, the Agency notes that the Commission in Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120121800 (Jan. 11, 2013) upheld the AJ's decision to remand for the processing as a mixed-case complaint. The Agency further argues that the instant matter was not so "firmly enmeshed" in the EEO process so as to preclude the Agency's Motion for Remand. The Agency states that it raised this mixed-case issue with the AJ shortly after her assignment to the case. The Agency notes that interlocutory appeals are not allowed pursuant to the Commission's regulations; thus, the instant appeal is its first chance to appeal the AJ's decision denying its Motion for Remand. The Agency further argues that the AJ erred in finding that Complainants established a prima facie case of age discrimination. The Agency argues that because Complainants have not presented any evidence of similarly-situated employees outside their protected class who were treated differently, and have not offered any evidentiary link between their ages and the nonselections. The Agency specifically notes that, although some of the selectees were substantially younger, they were not similarly situated because, unlike Complainants, they scored higher on the ACWA examination. The Agency further argues that it articulated legitimate, nondiscriminatory reasons for not selecting Complainants, and that the AJ erred in placing the burden on the Agency to disprove pretext by justifying why it chose to use the ACWA exam. The Agency maintains that Complaints presented no evidence suggesting that their nonselections for the vacancies at issue were motivated by a desire to exclude them because of their age. The Agency asserts that it allowed Complainants to fairly compete, as all candidates applied through the same process, which included taking the ACWA exam under the same conditions. The Agency further contends that the AJ improperly rejected its explanation that it used the ACWA exam because it wanted to hire a more diverse work force, and that the AJ improperly cited an article which stated that minority candidates perform more poorly than non-minority candidates on employment tests. In further arguing that the AJ erred, the Agency argues that the AJ's finding that it had a Regional policy to replace older candidates is an assumption that is not supported by the evidence. In addition, the Agency contends that the AJ accepted Complainant's testimony that a manager said that no internal candidates could apply, but there are no facts linking internal candidates to age. In addressing its discontinuation of internal CREDO vacancies, the Agency urges that, while this might show that hiring non-agency employees was favored, being an Agency internal employee is not a protected category. The Agency also argues that the AJ improperly second-guessed the Agency's business judgment to use the FCIP to fill positions for subsequent vacancies that were not part of the instant case. The Agency asserts that the AJ erroneously rejected a management official's explanation that the ACWA exam was used because it had previously produced "good results." The Agency further argues that the AJ's credibility findings are based on derivative inferences and are contradicted by the record, and therefore are not entitled to deference. In so asserting, the Agency argues that the AJ's credibility findings are not based on the demeanor of Agency witnesses, but on the absence of evidence. The Agency further maintains that the AJ's finding that its testimony about the FCIP was "disingenuously tentative" was clearly erroneous, and that the AJ's criticism of the FCIP as "non-competitive" is at odds with her stated preference for CREDO hiring, which is also non-competitive. In addition, the Agency argues that the AJ's finding that "hires were made without applicants having to take or pass the exam at all" is also erroneous, as the record shows that all hires had to take and pass the ACWA exam. In addition, the Agency asserts that the AJ's reference to testimony that it recruited "mainly on college campuses" was erroneous, as positions in the instant case were all published on the USAjobs.gov website. Further, the Agency contends that the AJ's finding that the Complainants who passed the ACWA exam were not selected on the basis of their age is not supported by substantial evidence in the record. The Agency specifically contends that all of the selectees scored between 86.5 and 99, while Complainants 7 and 8 scored 81.5 and 80.5, respectively. The Agency asserts that, even if Complainants had been interviewed, they would not have been selected pursuant to the "rule of three," as Complainants 7 and 8 were too far down on the ranked scoring list. The Agency asserts that the last selectees on the ranking lists were at least 13 spots higher than Complainants 7 and 8, and that it therefore made no sense to interview them.6 Complainant's Response In response to the Agency's appeal, Complainants assert that they previously have been found eligible and placed on best-qualified lists for internal promotion to GS-9 CR positions. Complainants note that no internal candidates were selected for the CR positions at issue. Complainants further assert that a District Manager commented that "nothing gave him greater pleasure than to teach younger employees new skills and promote them." Complainants maintain that the Agency's use of the ACWA exam here is pretext for age discrimination, and they request that we uphold the AJ's finding of discrimination. 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.F.R. Part 1614 (EEOC MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Agency's Request for Processing as a Mixed-Case Complaint It is not entirely clear whether Complainants nonselection claim was appealable to the MSPB; nonetheless, the Commission assumes jurisdiction over this case. The Agency's contentions notwithstanding, we find that this matter in fact is firmly enmeshed in the EEO process. We note the Agency's argument regarding interlocutory appeals from an AJ's rulings on motions during the hearing process. While this argument is not wholly without merit, we find it would better serve the interests of judicial economy for the Commission to address the matters on appeal. See, e.g., Burton v. Dep't of Agriculture, EEOC Appeal No. 01932449 (Oct. 28, 1994); Davis v. Dep't of Labor, EEOC Appeal No. 01A00981 (May 21, 2002) (claim of constructive discharge potentially appealable to the MSPB found to be firmly enmeshed in the EEO process). We also note that the Agency had the responsibility to properly define the parameters of this case when it issued the notice of rights to Complainants with its acceptance or dismissal letters, as specified in 29 C.F.R. § 1614.302(d). It did not do so. 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). In the non-selection context, Complainants may establish a prima facie case of age discrimination by showing that: (1) they are age 40 or older; (2) they were qualified for the position sought; (3) they were not selected for the position; and (4) they were accorded treatment different from that given to persons otherwise similarly situated who are members outside of their protected group. EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (Sept. 18, 1996); Williams v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). Here, we find that there is substantial evidence in the record to support the AJ's finding that Complainants established a prima facie case of age discrimination. The record reflects that all Complainants were age 40 or older during the relevant time period, and thus protected under the ADEA. The record further reflects that almost all of the candidates selected were in their 20s and 30s. ROI 1, at 25-26; ROI 2, at 15-17. Specifically, the Agency's data shows that out of the 16 selections, 12 of the selections were of candidates who were under the age of 40. Id. Also, all Complainants were internal candidates who had experience working for the Agency, were found to have met the minimum qualifications for the position, and were invited to take the ACWA exam. Although the Agency asserts that Complainants were not similarly situated to the selectees because they either did not pass or score highly enough on the ACWA exam, as discussed below, we find that the Agency used the exam as a way to exclude internal candidates who were predominantly over the age of 40. We note that other employees and management officials felt that Complainants were absolutely qualified for the CR position. Hr'g Trans, at 354. Employees and management officials also felt that the ACWA exam was not meant or designated for internal employees. In particular, the District Manager in Cherry Hill, New Jersey testified: Q: And the reason you thought [the ACWA exam] was unfair? A: I thought it was unfair to the employees. Q: The internals? A: Internals. Q: And why was it unfair? A: Well, because I had employees who couldn't pass the test. AJ: I'm sorry, employees who - A: Could not pass the test. Q: And did you feel they were promotion material? A: Absolutely. Hr'g Trans., at 353-54. As such, we find that there is substantial evidence in the record to support the AJ's finding that Complainants have established an inference of discrimination and established a prima facie case of age discrimination. We also find that substantial evidence in the record supports the AJ's finding that Complainants have established that the Agency's legitimate, nondiscriminatory reason was pretext for discrimination based on their age. Specifically, we find the Agency's reason that the ACWA exam was used as the sole method to evaluate both internal and external candidates - because it had obtained "good results" - to be pretext for age discrimination. We find that the Agency used the ACWA exam as way to screen out internal employees and recruit external hires for CR positions. In so finding, we note that the record shows that the ACWA exam was specifically designed for the recruitment of external hires and was never intended for employees who already worked for the Agency. The record reflects that the ACWA exam contained questions geared towards recent college graduates, and it was generally known that the test was easier for college students, who received study guides at their schools particularly related to the exam. Hr'g Trans., at 135. This finding is supported by the fact that the testing sites for the ACWA exam were primarily held at outside external Agency locations, including Rutgers University in New Jersey. Id. at 230. In addition, the ACWA exam did not take into account any specific experience or performance with the Agency, and the ACWA exam score was the sole method by which the Agency hired. We note that the Agency does not rebut Complainants' statements that the ACWA exam was not meant for current Agency employees and that no internal candidates were hired for the CR vacancies at issue. ROI, 1, Ex. 6, at 11-12; ROI 2, Ex. 11, at 3. On appeal, the Agency argues that, although external candidates were favored, being an Agency employee versus a non-Agency employee is not a protected basis under Commission regulations. We find, however, that the Agency was clearly aware, and it was reasonable to think, that Agency internal employees with years of experience generally were older than newly-hired external employees. In so finding, we note that almost of all the selectees were in their 20s and 30s, while all Complainants were at age 40 or above. ROI 1 at 25-26 ROI 2, at 15-17. Further, testimony reflects that the Agency chose the ACWA exam as the sole criterion for hiring in order to recruit and hire a younger workforce. Specifically, we note that the Supervisory Human Resources (HR) Specialist testified that management decided to use the ACWA exam because management found that it produced selectees who were "bright," "eager," and "energetic." Hr'g Trans., at 252. The Supervisory HR Specialist also testified that "external recruitment brings in new blood, new people coming into the Agency." Id. at 210. Although these comments and words do not directly address age, under the circumstances presented herein, they appear to be code words that strongly imply derogatory age-based stereotyping in favor of hiring younger external employees over older internal employees for selection. See Taylor v. Homeland Sec., EEOC Appeal No. 0120052546 (Dec. 6, 2006) (management's language that experienced employees had no desire to "grow," "improve" and "advance" were code words that imply age bias and stereotyping). Moreover, as the AJ noted, the Supervisory HR Specialist further testified that, after all the hiring for the CR positions was complete, there were still some vacant CR positions available later that fiscal year. Hr'g Trans, at 254. However, instead of using the ACWA exam to fill the positions, the Agency used the FCIP to non-competitively hire from local colleges.7 Id. While not dispositive, this fact nonetheless supports a finding that the Agency was motivated by discriminatory animus based on age when it screened out Complainants for the CR positions by using the ACWA exam. Further, the record reflects that the Agency had other avenues available to it beside the ACWA exam by which to select internal employees, including the ACWA questionnaire rather than the exam. As the Supervisory HR Specialist testified, the ACWA questionnaire took into account work experience while the ACWA exam did not. Id. at 255. Complainants averred that the Agency stopped using the ACWA questionnaire in 2009 because too many internal candidates were receiving positions. Id. at 74. We find the Agency's explanations are dubious, especially given that the Agency never took into account Complainants' experience and work history with the Agency in making its selections. In addition, the record reflects that the Agency also had stopped using the CREDO process, which it previously had used to promote internal candidates to CR positions. ROI 2, Ex. 8, at 5. Based on the totality of circumstances, we find that substantial evidence in the record supports the AJ's determination that the Agency's explanation for Complainants' nonselection was pretext for discrimination based on age. Regarding relief, we concur with the AJ's remedy of retroactively placing Complainants into the CR positions at issue. We find no evidence to meet the Agency's burden to show by clear and convincing evidence that Complainants would not have been selected even absent discrimination. See 29 C.F.R. § 1614.501(c)(1). 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 final order rejecting the AJ's decision that the Agency subjected Complainants to age discrimination and REMAND the matter to the Agency for further action in accordance with this decision and the Order of the Commission, below. 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 shall provide appropriate remedial EEO training to all responsible management officials involved in this case including at least four (4) hours of training for each supervisor and manager in Region 5 who oversaw the recruitment and selection of Claims Representatives, to include those supervisors and managers involved in the instant matter, whether or not they continue to work at that same facility; 2. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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). 3. The Agency shall instate each Complainant to the position of Claims Representative in a mutually acceptable location, with all attendant promotions, benefits, steps, and other increases to which they would be entitled had each been placed in the Claims Representative positions as of the first pay period in April 2009. 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 was issued. 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." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G1016) The Agency is ordered to post at all facilities located in New York and/or New Jersey offices where Complainants worked and applied for positions or promotions during the relevant time photocopies 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 3-20-2017 __________________ Date 1 This case has been randomly assigned pseudonyms which will replace Complainants' names when the decision is published to non-parties and the Commission's website. 2 Appeal No. 0720170007 encompasses Hearings Nos. 520-2012-00014X (Agency No. NY-09-0665-SSA) and 520-2010-00008X (Agency No. NY-08-0933-SSA). On February 25, 2014, the AJ issued an order of consolidation, finding that Hearing No. 520-2010-0008X was related to the instant case. 3 Complainants also alleged that they were subjected to discrimination based on national origin and reprisal. However, the AJ issued a summary judgment decision that excluded the bases of reprisal and national origin from the hearing. Complainants did not appeal the AJ's summary judgment decision. 4 We note that the Agency's further explanation for using the ACWA was that prior experience had shown that CRs hired using the exam were able to master complex materials. This explanation arguably suffices as a legitimate, non-discriminatory explanation. However, given that the AJ proceeded to the pretext analysis on the assumption that the Agency had met its evidentiary burden, any error in her analysis of the Agency's proffered explanation is harmless. 5 We note that the AJ included names of three complainants (including one who was only 33 years of age) in the caption of her decision who were not listed in the caption of the Hearing transcript or anywhere in the Hearing transcript itself. In addition, while the AJ included these additional three names in the caption of her decision, she did not list them with the names of Complainants 1 through 8 in the "accepted issue" portion of her decision. On appeal, the Agency asserts that it was not on notice that these three complainants would be consolidated as part of the case herein. We also note that the AJ listed a fourth complainant in the caption of her decision who had earlier withdrawn from the EEO process. We determine that the AJ committed a clerical error in listing these four additional complainants in the caption of her decision. Therefore, we have administratively closed Appeal Nos. 0720170009, 0720170010, 0720170011, and 0720170012, which were docketed for those four complainants. 6 On appeal, the Agency also asserts that the AJ improperly consolidated Hearing No. 520-2010-0008X (Agency No. NY-08-0933-SSA) with this instant case, which the Commission docketed as part of Appeal No. 0720170007. We note that on February 25, 2014, the AJ issued an order of consolidation, finding that 520-2010-0008X was related to the instant case. The Agency, however, asserts that Hearing No. 520-2010-0008X is factually distinct because the vacancies at issue therein did not require the passage of the ACWA exam. We note that Hearing No. 520-2010-0008X did involve the CR position as well, and we discern no basis upon which to disturb the AJ's decision finding that Agency No. NY-08-0933-SSA is part of the instant consolidated case. 7 Accordingly, we find the Agency's argument on appeal - that the AJ's finding that "hires were made without applicants having to take or pass the exam at all" is erroneous - to be without merit. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 5 0720170008 16 0720170001, et al.