0120123054, 0120123055, 0120123056, 0120123057, 0120123058
09-09-2014
Complainants, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainants,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 0120123054, 0120123055, 0120123056, 0120123057 & 0120123058
Hearing Nos. 410-2010-00202X, 410-2010-00160X, 410-2010-00161X,
410-2010-00203X & 410-2010-00158X
Agency Nos. ARGORDON09FEB01400, ARGORDON09FEB00497, ARGORDON09FEB01547, ARGORDON09FEB00406 & ARGORDON09JAN01545
DECISION
On July 26, 2012, Complainants each filed an appeal from the Agency's June 20, 2012 final decision concerning their equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. As each of the complaints involves the same factual allegations as the basis of the discrimination claim, we have decided to consolidate the five appeals and issue a single decision. See 29 C.F.R. � 1614.606.
BACKGROUND
At the time of events giving rise to this matter, the five complainants1 worked as Nurse Case Managers (also referred to in the record as Nurse Consultants) at the Agency's Warrior Transition Battalion ("Facility"), Eisenhower Army Medical Center in Ft. Gordon, Georgia (Facility).
The record indicated that Complainant 5 had been with the Facility since February 17, 2008. Complainants 2 and 3 started in March 2008 at the Facility. Complainant 1 began working at the Facility on May 27, 2008, while Complainant 4 started on June 8, 2008. All of them were GS-11 employees eligible for promotion to a GS-12 position.
In the summer of 2008, two Lead Nurse Case Manager, GS-12, positions became vacant. The Lead Nurse Case Manager (Caucasian) offered one of the positions to a Nurse Case Manager (African American) ("Selectee 1") other than the complainants, but this individual declined the position. In August 2008, the Facility Director (Caucasian), at the recommendation of the Lead Nurse Case Manager, used a non-competitive direct hire process to select two other nurses ("Selectees 2 and 3") (both Caucasian) other than complainants for the Lead Nurse Consultant positions. Selectee 3 began working in her new position effective October 12, 2008, and Selectee 2 started effective January 18, 2009.
Based on these events, the complainants each contacted the Agency's EEO office alleging discrimination.
When the matter was not settled informally, on April 20, 2009, Complainant 1 filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (dark skinned), and reprisal for prior protected EEO activity when:
1. She was not provided the opportunity to compete for the Lead Nurse Consultant positions that were awarded non-competitively through the direct hire process.
2. On August 21, 2009, she and the other Nurse Case Managers were informed that they would no longer be centrally located and, instead, would be assigned to the buildings occupied by their respective companies, namely ALPHA, BRAVO and CHARLIE. They alleged that this move was in retaliation for complaining about the selection process in claim (1).2
Complainant 2 filed her formal complaint on April 10, 2009, alleging discrimination based on race (African-American), disability, and reprisal for the same two events as Complainant 1. Complainant 3 alleged discrimination regarding claims (1) and (2) on the bases of race (African American), disability and reprisal. On April 27, 2009, Complainant 4 filed her formal complaint alleging discrimination on the same two events on the bases of race (African American), color (bi-racial) and reprisal. Finally, Complainant 5 filed her formal complaint on April 17, 2009, alleging discrimination on the bases of race (African American), disability, and reprisal, also based on claims (1) and (2).
At the conclusion of the investigation, the Agency provided each Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainants timely requested a hearing, but subsequently withdrew their requests. Consequently, the Agency issued final decisions for each Complainant pursuant to 29 C.F.R. � 1614.110(b). The decisions concluded that Complainants 1, 2, 3, 4 and 5 failed to prove that the Agency subjected them to discrimination as alleged in claims (1) and (2).
The instant appeals followed. We note that the complainants were all represented by the same attorney and the briefs for each of the complainants were substantially similar.
On appeal, complainants argued that they established a prima facie case of discrimination. They argued that the Agency's reasons for using the direct hire authority were false and, further, that the complainants were more qualified for the positions in question than Selectee 2 and 3. In addition, they noted that Selectee 1, the only selectee who was African American, was never interested in a leadership position. As such, complainants contended that the responsible Agency officials had no real expectation that she would accept the position in question. In addition, complainants argue that the Agency engaged in unlawful retaliation when complainants were relocated shortly after they filed their EEO complaints concerning their non-selections. Accordingly, complainants requested that the Commission find that the Agency's actions constituted discrimination and to reverse the Agency's final decisions.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Claim 1 - Selection Process
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
In this case, the Agency, in its final decision, proceeded with its legal analysis by assuming that complainants established a prima face case of discrimination. Therefore, we will also do the same. The Agency, however, asserted that any initial inference of discrimination raised was successfully rebutted during the investigation in the affidavits of the responsible management officials where they articulated legitimate, non-discriminatory reasons for the decisions at issue.
The Lead Nurse Case Manager stated that once she learned they were losing two Lead Nurse Consultants in ALPHA company, she wanted to quickly fill the positions with individuals with demonstrated experience because they had a lot of new Nurse Case Managers. She said she contacted civilian personnel with her concern and was told that they had direct hire authority and did not have to select through a competitive application process. She stated that she first offered the position to Selectee 1 because she had previously been part of managed care, had extensive knowledge of the Army case management process and demonstrated proficiency in the applicable policies and procedures. However, when Selectee 1 declined the position, she went on to choose Selectee 2 and 3. She explained how she believed that each of selectees had prior experience and ability that qualified them for the position.
The Facility Director confirmed that they consulted with personnel and learned they had direct hire authority to fill these positions. He said they tried to convince Selectee 1 to take the position several times, but did not succeed. Therefore, they offered the positions to Selectee 2 and 3 based on their experience. He noted that Selectee 2 had been at the Facility since October 2006 and Selectee 3 since December 2007, while the complainants were less familiar to management because they had all started between February and May 2008, for selections that were made in August 2008.
The Human Resources Specialist explained that nurse positions can be filled under the direct hire authority. She explained that under this authority, a person who satisfies the OPM qualifications for a position can be hired into that position without the need to post a vacancy announcement. She added that once management identifies a potential selectee, personnel verifies that the candidate is qualified for the position prior to extending the job offer. She also stated that, during their initial discussion, the Lead Nurse indicated that she wanted to select individuals who had experience and could "hit the floor running."
Upon review, we find that the Agency has articulated legitimate, nondiscriminatory reasons for using the direct hire authority to fill the positions with Selectee 2 and 3. We turn to complainants to establish that the Agency's reasons were pretext for discrimination. Complainants can do this directly by showing that the proffered explanations are unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. Complainants can also establish pretext by showing that their qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainants argued that there was no immediate need to fill the positions. They noted that, despite the rationale offered by management, Selectee 2 could not begin working right away in the position because she was not eligible for the GS-12 level until January 2009. Further, Selectee 3 did not step into the position until October 12, 2008. They further noted that the positions had previously been filled on a rotational basis and there had been no leads for some time. In addition, Complainant 5 noted in her affidavit that there were no current Lead Nurse Consultants for BRAVO and CHARLIE companies, and the Agency had not filled the positions. Based on the totality of the evidence, we find that the record does not support the Agency's assertion that positions needed to be filled in an expedited manner.
Furthermore, complainants claimed that Selectee 2 was not even eligible for the position at the time of her selection. The evidence supports a finding that the delay in Selectee 2's assignment to the position was because she could not be transferred to the GS-12 level until January 2009. As such, Selectee 2 was not eligible for the position at the time she was chosen. In addition, Selectee 3 and complainants had been with the Agency and the Facility for nearly the same amount of time. Selectee 3 began work at the Facility in December 2007, while several of the complainants began working in January and February of 2008. Although Selectee 2 and 3 had spent some more time than the Complainants at the Facility, Complainants 1, 2, 3, 4, and 5 had college degrees and some had master's degrees. All of them were eligible for the GS-12 level and all noted that they had a great deal more experience with nursing, working with soldiers, and supervising than Selectees 2 and 3. Based on the record, we find that complainants have demonstrated that they as or more qualified for the lead positions than the selectees.
Accordingly, we find that complainants have met their burden of proving pretext by a preponderance of the evidence. Complainants have established that the Agency's articulated reasons for using direct hire authority to place Selectees 2 and 3 into the positions in question were pretext for race discrimination.3
There remains the matter of the remedy to be afforded complainants. A job applicant has the right to be free from discrimination throughout the selection process. If the process is discriminatory at any phase, the applicant must be awarded full relief, i.e., the position retroactively, unless the employer shows by clear and convincing evidence that even in the absence of discrimination, the applicant would not have been selected. See Pryor v. U.S. Postal Service, EEOC Request No. 05980405 (Aug. 6, 1999). Placing such an onerous burden on the employer is proper, inasmuch as the employer's unlawful acts caused the difficulty in determining what would have resulted if there had been no discrimination. See id. Thus, in a case such as this one, a complainant is are entitled to retroactive placement in positions, unless the agency can show by clear and convincing evidence that, even absent discrimination, complainant would not have been selected for the positions they desired. See id; see also 29 C.F.R. � 1614.501(c)(1); Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976). After a thorough review of the record in this case, we find that the Agency has not met this burden. There is simply no evidence of any impediment to the selection of any of the complainants and we have already found that the record does not support a finding that the selectees were better qualified than the complainants.
However, the remedy in this case is complicated by the fact that although the five complainants were discriminated against in the selection process by reason of race, only two would have been promoted in any event. An effort must be made to determine, among the five, who would have been selected "but for" the unlawful discrimination. See Preston T. White and Kirk D. Harman v. Department of Labor, EEOC Appeal Nos. 07A30043 and 07A30044 (October 28, 2004) (finding that an administrative judge erred as a matter of law by awarding full relief to two complainants rather than determining which of the complainants would have been selected "but for" the discrimination). To do otherwise would place at least three of the complainants in a better position than they would have occupied in the absence of discrimination. Therefore, we will remand this matter back to the Agency for a supplemental investigation and determination as to whom, among the five complainants, would have been selected for the two Lead Nurse Consultant positions but for the discrimination. The equitable relief awarded (retroactive placement and back pay) must logically flow from this determination. However, all five complainants are entitled to consideration for compensatory damages for any harm proven to have resulted from their participation in a discriminatory selection process.
Claim 2 - Relocation
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding claim (2), the Agency averred that on August 21, 2009, it was announced that the Nurse Case Managers, including the complainants, would be relocated into their separate ALPHA, BRAVO and CHARLIE company areas. Colonel T (Hispanic/Native American), who replaced the Lead Nurse Case Manager involved in claim (1) in June 2009, stated that he made the decision to move all the Nurse Case Managers out of the hospital and into their respective companies in order to make room for human resources, patient administration and finances. He said that, in searching for space in the hospital for the other offices; he did some research and found that in most other locations Nurse Case Managers were imbedded with their companies. He also learned that, at this Facility, they had originally moved into the hospital because of building renovations and limited space availability.
Upon review, we find that the Agency articulated legitimate, nondiscriminatory reason for the proposed move. We turn to Complainants to establish that the Agency's reason was pretext for discrimination. Complainants asserted that the Agency moved the Nurse Case Managers out of the hospital following the filing of the instant EEO complaints. They argue that the Agency wanted to separate the complainants in order to interfere with their EEO complaints. However, beyond their bare assertions, complainants have failed to address the Agency's articulated reason for the move concerning the need for room to move other offices into the hospital and the fact that Nurse Case Managers were traditionally imbedded in their companies in other locations. We note that the relocation directive applied to all Nurse Case Managers at the Facility and not just the complainants.
In an effort to prove pretext, Complainants focused on comments made by Colonel T during a meeting with several of them within three weeks of his arrival at the facility. At the informal meeting, several complainants raised the issue of the unfairness of the selections in claim (1). When they asked his opinion of the matter, Colonel T responded that, in his experience, the Agency had direct hire authority in this type of situation and the selections would stand. In making this point, it is undisputed that he said something like, "if anything happened it would only be a slap on the wrist and they need to let it go and move on." He also noted that the officials involved in the selection were gone and this had all happened before he came.
While Colonel T's response to complainants about their concerns with the direct hire situation may have been ill-advised and insensitive to the seriousness of the situation, it appears more likely than not that the comments reflected his desire to refrain from focusing on matters that occurred before he assumed supervisory authority. Moreover, there is simply no nexus between these comments and the decision to relocate all the Nurse Case Managers back into their respective companies. Therefore, we conclude that complainants have not proven, by a preponderance of the evidence, that the Agency's reasons for the relocation constituted unlawful retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the finding of no discrimination as to claim (2). However, we REVERSE the Agency's final decision finding that the Agency violated Title VII with respect to claim (1). Therefore, we REMAND the matter for further processing in accordance with the ORDER below.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall conduct a supplemental investigation and issue a final decision, with appeal rights to this Commission, determining who, among the five complainants, would have been selected for the two Lead Nurse Consultant positions but for the discrimination.
2. Once the two selectees have been determined, they shall be placed in the Lead Nurse Consultant positions retroactive to the date they would have assumed the position had it not been for the discrimination. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due the two complainants (selectees), pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The complainants 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 complainants for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The complainants 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."
3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give all five complainants notice of their right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of their claims for compensatory damages within forty-five (45) calendar days of the date complainants receive the Agency's notice. The Agency shall then complete an investigation on the claims for compensatory damages within forty-five (45) calendar days of the date the Agency receives complainants' claim for compensatory damages. Thereafter, the Agency shall process the claims in accordance with 29 C.F.R. � 1614.110.
4. Within sixty (60) calendar days from the date this decision becomes final, the Agency is directed to conduct EEO training for the management officials who have been found to have engaged in unlawful discrimination.
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 (G0610)
The Agency is ordered to post at the 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 (H0610)
If complainants have has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), they are entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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 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 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 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 (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 (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, Director
Office of Federal Operations
September 09, 2014
_________________
Date
1 Hereinafter, SW will be referred to as "Complainant 1," ML as "Complainant 2," MH as "Complainant 3," AC as "Complainant 4" and SH "Complainant 5."
2 Claim (2) was an amendment to the original complaint.
3 Because we have found that the Agency's action constituted unlawful race-based discrimination, we need not address the bases of color and/or disability raised by some of the complainants.
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0120123054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123054, 0120123055, 0120123056,
0120123057 & 0120123058