01A20468
05-12-2003
Harry Milligan, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Harry Milligan v. Department of Veterans Affairs
01A20468
05-12-03
.
Harry Milligan,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20468
Agency Nos. 98-1076, 99-0522
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues presented herein are whether complainant was discriminated
against on the bases of sex, age (DOB 12/25/47), and reprisal for prior
EEO activity when:
(1) he was not selected for a Veterans Claims Examiner (Rating
Specialist), GS-996-11, trainee, or GS-996-12, position announced in
vacancy announcement No. B-636 (sex, age, and reprisal<1>) (Agency
Complaint No. 98-1076);<2> and
(2) on January 22, 1999, he was not selected for promotion to a Veterans
Claims Examiner (Rating Specialist), GS-996-12, position announced
in vacancy announcement No. B-657, dated October 16, 1998 (reprisal)
(Agency Complaint No. 99-0522).
BACKGROUND
During the relevant time, complainant was employed as a Veterans Claims
Examiner, GS-996-11, at the agency's VA Regional Office and Insurance
Center in Philadelphia, Pennsylvania. Complainant applied for the
position of Veterans Claims Examiner (Rating Specialist), GS-996-12,
announced in vacancy announcement No. B-636, which closed on December
17, 1997. The vacancy was later amended to identify the position as that
of Veterans Claims Examiner (Rating Specialist), GS-996-11, trainee,
or GS-996-12. The amendment notice stated that candidate(s) selected
at the GS-11 level would serve in a trainee capacity at that level and
would be eligible for promotion to the GS-12 position. In addition,
the position was to be filled on a temporary basis not to exceed one
year, and in the event the position was extended or became permanent,
the selectee could remain in the position without further competition.
Four full-time temporary positions were available under the announcement.
Based upon knowledge, skills, abilities, and other factors (KSAOs),
complainant received the highest rating on the certified list. The agency
found complainant and twelve other applicants qualified for the position.
The selecting official (SO) and another agency official interviewed
complainant and the twelve other applicants. SO selected four females
(DOB 5/9/54, prior EEO activity; DOB 7/08/70, no prior EEO activity; DOB
10/10/65, no prior EEO activity; and DOB 8/13/52, no prior EEO activity)
for the GS-996-11, trainee positions, and one male (DOB 11/24/42, no
prior EEO activity) for the GS-996-12 position.
Complainant also applied for the position of Veterans Claims Examiner
(Rating Specialist), GS-996-12, announced in vacancy announcement
No. B-657, which closed on November 6, 1998. Complainant and six other
applicants were found qualified, and their names were forwarded to SO.
The record reflects that, during a meeting to discuss the applicants,
SO asked several responsible management officials, including section
chiefs and the Assistance Service Center Manager, for recommendations.
SO, as well as the others present during the meeting, testified that no
one recommended complainant. SO selected five of the other applicants.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed two formal complaints. As corrective
action for issue 1, complainant requested �pay grade for the position,
monetary benefits lost, attorney fees and court costs, and aggravation
compensation.� With respect to issue 2, complainant sought to �move to
[a] GS-12 position, [and] restitution for aggravation and humiliation.�
At the conclusion of the agency's investigations, complainant was provided
a copy of the investigative file and informed of his right to request
a hearing before an EEOC Administrative Judge (AJ) or, alternatively,
to receive a final decision by the agency. Complainant first requested
a hearing before an AJ. However, as a sanction for failing to respond to
a scheduling order, the AJ dismissed complainant's complaints on December
15, 2000. On January 5, 2001, the agency implemented the AJ's dismissal.
Complainant filed an appeal with the Commission, and in EEOC Appeal
No. 01A11947 (June 1, 2001), the Commission remanded the matter back to
the agency for a final agency decision because the agency had completed
its investigation of the complaints such that it could reach a decision
based upon the record before it.
On September 18, 2001, the agency issued two separate decisions for
the nonselections in issues 1 and 2. In the final decision for issue
1, the agency concluded that complainant established a prima facie
case of sex and age discrimination with respect to two of the trainee
selections. The agency further found that complainant established
a prima facie case of reprisal discrimination with respect to the
GS-996-12 position. However, the agency determined that SO provided
a legitimate nondiscriminatory reason for not selecting complainant,
namely that the supervisory recommendations of the selectees were stronger
than those received by complainant, and that complainant had not received
supervisory recommendations from his first and second level supervisors.
With respect to complainant's claim of reprisal, the agency noted that
SO had promoted employees with prior EEO activity, and that one of
the female selectees had prior EEO activity. The agency found that
complainant failed to show that the agency's reasons were pretextual.
In the final decision for issue 2, the agency concluded that complainant
established a prima facie case of reprisal discrimination. However,
it determined that SO articulated a legitimate nondiscriminatory reason
for not selecting complainant. Specifically, SO averred that none of
the other responsible management officials recommended complainant for
the position. One responsible management official (RMO-1) stated that
he neither recommended complainant nor opposed him because he had never
worked with complainant. Another responsible management official (RMO-2)
testified that he was unable to recommend complainant because he did not
have much experience supervising complainant, and he was not favorably
impressed by complainant's frequent requests for training. Finally,
a third management official (RMO-3) averred that he had determined that
complainant was not one of the best five candidates when he assessed the
supervisory appraisals, and that although complainant received training
when he transferred positions, complainant indicated that he had not
received sufficient training. The agency found that complainant failed
to show that the agency's reasons were pretext for discrimination, and
it concluded that complainant failed to prove by a preponderance of the
evidence that he was discriminated against as alleged.
On appeal, complainant contends, among other things, that: (1) he
was rated higher on the KSAOs and was older than the four female
selectees; (2) RMO's stated reason for not selecting complainant for
the trainee position was untrue as complainant provided a supervisory
recommendation in support of his application; and (3) with respect to
issue 2, none of the supervisory staff questioned by SO ever functioned
as complainant's first line supervisor, and thus they could not provide
a favorable reference of complainant's performance. In response, the
agency argues that the supervisory recommendations of the selectees were
stronger than that of complainant, and that complainant did not have
a supervisory appraisal from his first- and second-level supervisors.
The agency further asserts that, even if SO based his decision on a
mistaken belief, such would not be evidence of unlawful discrimination.
The agency maintains that the SO's promotion of complainant less than
a year before the instant nonselections supports his testimony that he
had no retaliatory animus towards complainant.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). For complainant
to prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, that is, 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). Once the agency has met
its burden, the 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 Center v. Hicks,
509 U.S. 502 (1993).
Complainant asserted that he was discriminated against on the bases of
sex and age with respect to issue 1. In order to establish a prima
facie case of discrimination based on sex and age, complainant may
show: (1) that he is a member of a protected group; (2) that he was
subjected to an adverse employment action; and (3) that he was treated
less favorably than other similarly situated employees outside of his
protected groups. We note that it is not necessary for complainant
to rely strictly on comparative evidence in order to establish an
inference of discriminatory motivation necessary to support a prima
facie case. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
The Commission finds that complainant has established a prima facie case
of sex and age discrimination with respect to the trainee positions.
The record indicates that complainant is a member of a protected group
(male, 51 at the time of the selections), he was nonselected for the
trainee positions, and he was treated less favorably than similarly
situated employees who were outside of his protected groups (females,
between the ages of 44-28 at the time of the selections).
Complainant also alleged that he was discriminated against on the
basis of reprisal in both issues 1 and 2. He can establish a prima
facie case of reprisal discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas; Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976); and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000). We find that complainant failed to
establish a prima facie case of reprisal with respect to issue 1 because
he fails to show a nexus between his protected activity which took place
in February 1995 and June 1995 and his nonselection in 1998. See Clark
County School District v. Breeden, 532 U.S. 268 (2001). With respect to
issue 2, however, the Commission determines that complainant established
a prima facie case of reprisal discrimination because he engaged in
a protected activity; the SO was aware of his protected activity;
subsequently, he was not selected for a position by the agency; and a
nexus exists between his protected activity in 1998 and his nonselection
in 1999.
The burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. While the burden upon the
agency to articulate a reason is not an onerous one, Commission precedent
holds that the agency must set forth with sufficient clarity reasons for
complainant's nonselections such that he has a full and fair opportunity
to demonstrate that those reasons are pretext. See Parker v. United
States Postal Service, EEOC Request No. 05900110 (April 30, 1990);
Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November
6, 1997). Upon review of the record, we find that the agency failed to
meet its burden with respect to issue 1 when it presented evidence that
SO averred that complainant �had not received supervisory recommendations
from his first and second level supervisors,� and that �the supervisory
recommendations of the selectees were stronger than those received by
complainant.� First, the final decision misquotes the reasons provided
by SO. In his affidavit, SO stated:
The selected candidates received very strong recommendations from their
supervisors. [Complainant] got no recommendation from either his first
or second level supervisor.
Clearly, the agency's articulated nondiscriminatory reasons are
not supported by SO's testimony. Although the agency stated that
the supervisory recommendations of the selectees were stronger
than complainant's, SO only spoke of the absence of a supervisory
recommendation and never asserted that the supervisory recommendations
of the selectees were stronger than complainant's. In addition, neither
the final decision nor SO identified why the selectee's recommendations
were considered stronger than complainant's. As such, the agency has
not provided complainant with a full and fair opportunity to demonstrate
that the agency's explanation is pretextual. The SO also averred that
complainant had not received a recommendation from either his first or
second level supervisor. The record reflects and the agency admits,
however, that complainant did in fact receive a recommendation signed
by his Unit Chief and Section Chief, which specifically states that
complainant's �performance exceeds expectations and warrants special
mention for placement consideration.� We further note that complainant
received the highest rating on the certified list. Since the agency has
provided no other legitimate nondiscriminatory reason for its action,
we find that the agency's reasons fail to satisfy its burden, denying
complainant a full and fair opportunity to demonstrate that the agency's
explanation is pretextual. Even if we presume that the agency articulated
a reason, namely that complainant did not receive a recommendation from
either his first or second level supervisor, the record reflects that
this reason is untrue. Therefore, in view of the overwhelming evidence,
the Commission concludes that complainant has established his claim of
sex and age discrimination when he was not selected for a Veterans Claims
Examiner (Rating Specialist), GS-996-11, trainee, position announced in
vacancy announcement No. B-636.
With respect to issue 2, we find that the agency articulated a legitimate,
nondiscriminatory reason for its action, namely that SO did not select
complainant because, during a meeting to discuss the applicants, the
responsible management officials did not recommend complainant for
the position. Although complainant argues that none of the supervisory
staff questioned by SO ever functioned as his first level supervisor,
the record reflects that RMO-1 was complainant's second level supervisor
and RMO-2 testified that he supervised complainant for a short period.
We further note that, to the extent SO based his decision on the
recommendations or lack thereof of the responsible management officials,
his failure to promote complainant cannot be shown to have been based
upon a discriminatory motive. Accordingly, we find that complainant
failed to prove by a preponderance of the evidence that the agency
discriminated against him with respect his nonselection for promotion
to a Veterans Claims Examiner (Rating Specialist), GS-996-12, position
announced in vacancy announcement No. B-657.
CONCLUSION
Accordingly, the agency's final decision in Agency Complaint No. 98-1076
is reversed, and the agency's final decision in Agency Complaint
No. 99-0522 is affirmed. The Commission hereby finds that complainant
was discriminated against on the bases of sex and age. This case is
remanded to the agency to take remedial action in accordance with this
decision and the order below.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall retroactively place complainant in the Veterans Claims
Examiner (Rating Specialist), GS-996-11, trainee position or an equivalent
position at the agency's VA Regional Office and Insurance Center in
Philadelphia, Pennsylvania. Complainant shall be given a minimum of
fifteen (15) days from receipt of the offer of placement within which
to accept or decline the offer. Failure to accept the offer within
the time period set by the agency will be considered a rejection of the
offer, unless complainant can show that circumstances beyond his control
prevented a response within the time limit.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall conduct a supplemental investigation to determine whether
complainant is entitled to compensatory damages incurred as a result of
the agency's discriminatory actions. The agency shall allow complainant
to present evidence in support of his compensatory damages claim.
Complainant shall cooperate with the agency in this regard. Thereafter,
the agency shall issue a final decision. 29 C.F.R. � 1614.110(b).
The supplemental investigation and issuance of the final decision must
be completed within sixty (60) calendar days of the date this decision
becomes final. A copy of the final decision must be submitted to the
Compliance Officer, as referenced below.
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 becomes final. 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 shall provide training in the obligations and duties imposed
by Title VII and the ADEA to the agency official(s) involved in the
decision to not select complainant.
The agency shall consider taking disciplinary action against the
management official(s) identified as being responsible for the decision
to not select complainant. 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.
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 benefits due complainant, including evidence
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Regional Office and Insurance
Center in Philadelphia, Pennsylvania 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
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint, solely
with respect to the Commission's finding of sex discrimination.<3>
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 (T0900)
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 (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
___05-12-03_______________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has
occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Department of Veterans Affairs, VA Regional Office and
Insurance Center in Philadelphia, Pennsylvania confirms its commitment
to comply with these statutory provisions.
The Department of Veterans Affairs, VA Regional Office and Insurance
Center in Philadelphia, Pennsylvania supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Department of Veterans Affairs, VA Regional Office and Insurance
Center in Philadelphia, Pennsylvania has been found to have discriminated
against an employee when the agency failed to select the employee based
upon his sex and age. The Department of Veterans Affairs, VA Regional
Office and Insurance Center in Philadelphia, Pennsylvania has been
ordered to provide compensatory damages, back pay, and attorney's fees to
the affected employee and provide training regarding Title VII and the
ADEA to appropriate managers. The Department of Veterans Affairs, VA
Regional Office and Insurance Center in Philadelphia, Pennsylvania will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment opportunity laws.
The Department of Veterans Affairs, VA Regional Office and Insurance
Center in Philadelphia, Pennsylvania will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1 Complainant filed his prior EEO complaints on February 24, 1995 and
June 2, 1995.
2 On appeal, complainant raises the issue of his nonselection as to the
Veterans Claims Examiner (Rating Specialist), GS-996-11, trainee position.
Accordingly, with respect to issue 1, this decision will only address
the trainee position.
3 Complainants prevailing on claims under the ADEA are not entitled
to attorney's fees at the administrative level. See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at 11-1 (November 9, 1999); see also McGinnis v. Department of Defense,
EEOC Request No. 05920150 (July 15, 1992).