0720060049
11-06-2006
Arthur F. Paras, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Arthur F. Paras,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 07200600491
Hearing No. 170-2005-00057X
Agency No. 04-0114-SSA
DECISION
Following its February 21, 2006 final order, the agency filed an appeal.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Contact Representative in Baltimore, Maryland. Complainant filed
an EEO complaint on January 6, 2004, alleging that he was discriminated
against on the basis of race (Asian/Pacific Islander) when:
On September 9, 2003, complainant learned that he was not
selected for the position of Social Insurance Specialist (Claims
Authorizer), GS-105-7, under Vacancy Announcement No. SA174761.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing and the AJ held a hearing on November 30, 2005, and issued a
decision on December 22, 2005. The agency subsequently issued a final
order rejecting the AJ's finding that complainant proved that he was
subjected to discrimination as alleged.
In her decision, the AJ found that complainant established a prima facie
case of discrimination based on complainant's race in that he applied
for the position of Claims Authorizer, GS-105-7, was found qualified and
received an interview for the position. Complainant was not selected
for the position and other applicants, not in complainant's racial
group were selected.3 Of the 17 applicants selected, none belonged to
complainant's same protected racial group. The AJ further found that the
agency articulated a legitimate, non-discriminatory reason for failing
to select complainant, namely that, according to the selecting official
(S1), complainant was not selected because complainant was not "highly"
recommended by the official (R1) with whom complainant interviewed.
The AJ found that R1 stated that complainant performed well on the
interview, that he was very knowledgeable and had very good experience,
communication skills, and reliability and therefore, R1 "recommended"
that complainant be selected. R1 had also interviewed another applicant,
E1, who R1 found to be highly intelligent and articulate. R1 received
positive feedback from both complainant's second line supervisor and from
E1's supervisor. However, R1 recorded in her notes that complainant's
supervisor "definitely recommended" complainant for the position, while
E1's supervisor "highly recommended" E1 for the position. S1 selected
E1 for the position based on R1's notes. The AJ found that R1 could
not articulate any meaningful distinction between the two levels of
recommendation.4 With comparable supervisor recommendations and interview
performances for both E1 and complainant, the AJ found that the agency's
stated reasons for failing to select complainant for the position were not
worthy of belief and that discrimination more likely than not motivated
the agency's decision not to select complainant for the position.
The AJ ordered the agency to take the following remedial action:
1. Place complainant in the Claims Authorizer position, SSA
Mid-Atlantic Program Service Center, retroactive to September 21, 2003,
with appropriate grade and step increases, and with the presumption of
satisfactory performance in such position retroactive to that date, as
well as back pay, if any, to be computed in the manner prescribed by 5
C.F.R. � 550.805, and all other back benefits attendant to appointment
to that position.
2. Award complainant $5,000 for non-pecuniary, compensatory damages.
3. Post at the SSA Mid-Atlantic Program Service Center copies of
the Notice to Employees (or Notice) to be attached to this Decision when
it is transmitted to the agency for its final action in this matter.
4. Award no attorney's fees because complainant was not represented
by an attorney in this matter.
On appeal, the agency argues that because complainant is not, and did
not, at the time of the hearing, show that his qualifications for the
position were plainly or observably superior to those of the selectee
(E1), the AJ's analysis is flawed and thus her finding of discrimination
is in error. Further, the agency argues that complainant did not show
any connection between his race and the agency's selection decision.
Complainant also appealed the AJ's decision with respect to the AJ's award
of relief. Complainant states that the AJ's finding of discrimination by
inference is supported by the evidence, and moreover, his qualifications
are, in fact, plainly superior to the selectee's qualifications, given
complainant's many more years of experience. Complainant argues that
the AJ's award of compensatory damages should, based on the evidence of
complainant's depression submitted at the hearing, be increased to at
least $15,000.
ANALYSIS AND FINDINGS
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.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Finding of Discrimination
After a careful review of the record, we discern no basis to disturb the
AJ's finding of race discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. In this case, we are persuaded that
complainant raised an inference of discrimination by the fact that
when R1 considered the favorable feedback from E1's supervisor and E1's
interview performance, R1 noted that E1 was "highly recommended" to the
selecting official. However, despite comparably favorable input from
complainant's second line supervisor and his very good performance during
complainant's interview, R1 failed to provide the same recommendation
for complainant. We find that substantial evidence supports the AJ's
conclusion that discrimination on the basis of race occurred as alleged.
Compensatory Damages
To receive an award of compensatory damages, complainant must demonstrate
that he has been harmed as a result of the agency's discriminatory action;
the extent, nature and severity of the harm; and the duration or expected
duration of the harm. See Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 at 11- 12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent
directly or proximately caused the harm, and the extent to which other
factors also caused the harm. The Commission has held that evidence from
a health care provider is not a mandatory prerequisite for recovery of
compensatory damages. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases. See
Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996).
After a careful review of the record, considering the nature of the
discriminatory actions and the nature of the harm to complainant, we find
the award of $5,000 in non-pecuniary, compensatory damages is appropriate.
The AJ noted that at the hearing complainant described that he sought
psychological help for depression and anger that he experienced after the
non-selection. The AJ found that the progress notes from complainant's
treating health care providers supported complainant's claim of the
mental anguish he described and his depressive state. The AJ noted that
in general, complainant presented minimal evidence that his depression
and anger were due to the non-selection, and not due to other stressors.
The Commission has awarded similar compensatory damages in cases similar
to complainant's case. See e.g., Spencer v. Department of the Treasury,
EEOC Appeal No. 07A10035 (May 6, 2003) ($5,000 in non-pecuniary,
compensatory damages awarded as a result of agency's discriminatory
failure (based on disability) to hire complainant and complainant's
resulting sense of emptiness, discouragement, sadness, and disrupted
sleeping habits), request for reconsideration denied, EEOC Request
No. 05A30898 (Aug. 29, 2005); Brooks v. United States Postal Service,
EEOC Appeal No. 01996915 (October 12, 2001) ($6,000 in non-pecuniary,
compensatory damages awarded as a result of agency's discriminatory
reassignment (based on race and retaliation) and resulting in, complainant
contended, chronic depression, anger, aggravation of high blood pressure,
and adverse effects on family life). We affirm the AJ's award of
non-pecuniary, compensatory damages in the amount of $5,000.00 since
the record shows that as a result of the discriminatory non-selection,
complainant experienced depression and anger both at home and during the
work day. Further, the amount of the award meets the goals of not being
"monstrously excessive" standing alone, not being the product of passion
or prejudice, and being consistent with the amount awarded in similar
cases.
We therefore REVERSE the agency's final action finding no discrimination
occurred, and REMAND the matter to the agency to take the remedial action
ordered by the AJ, as slightly modified herein.
ORDER
The agency shall take the following actions:
1. Within 30 days of the date this decision becomes final the agency
shall promote complainant to the position of Social Insurance Specialist,
(Claims Authorizer), GS-105-7, SSA Mid-Atlantic Program Service Center, or
a substantially equivalent position, retroactive to September 21, 2003.
2. Within 60 days of the date this decision becomes final, the
agency shall determine the appropriate amount of back pay, with interest,
and other benefits due complainant for the period beginning September
21, 2003, to the time complainant is placed into the Claim Authorizer
position, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in
the agency's efforts to compute the amount of back pay and benefits due
and shall provide relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits due,
the agency shall issue complainant a check for the undisputed amount
within thirty calendar days of the date that the agency determines the
amount it believes due. Complainant may petition for enforcement or
clarification for the amount in dispute.
3. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $5,000.00 for non-pecuniary, compensatory damages.
4. Within 180 days of the date this decision becomes final, the
agency shall provide training to all officials responsible for the alleged
discrimination in this case regarding the prevention of discrimination
based on race.
5. Within 60 days of the date this decision becomes final, the
agency shall consider taking appropriate disciplinary action against
the responsible management official. The Commission does not consider
training to be disciplinary action. The agency shall report its decision
to the Compliance Officer referenced herein. 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).
Documentation of compliance with provisions 1 - 5 of this Order must be
sent to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Baltimore Tele-Service Center in
Baltimore, Maryland facility and at its Mid-Atlantic, Philadelphia,
Pennsylvania facility copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (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 ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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, Director
Office of Federal Operations
November 6, 2006
__________________
Date
1 Due to a new data system, this appeal has been redesignated with the
above referenced appeal number.
2 Prior to the hearing, complainant withdrew various other issues.
3 The record shows that the agency hired 17 candidates from the
same vacancy announcement for which complainant applied, including 9
African-American, 2 Hispanic, and 6 White applicants.
4 In her investigative affidavit, R1 noted only that her instructions were
to indicate whether a candidate was "recommended" or "not recommended."
At the hearing, R1 also explained that some candidates were described as
"highly" recommended or "very highly" recommended, and in at least one
instance, "reluctantly" recommended.
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07A60049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720060049