01997122
01-24-2001
Joseph A. Bruzzese, William C. Hulcher, Robert M. Johnson, Marion Paddy, Complainants, v. William M. Daley, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Joseph A. Bruzzese, William C. Hulcher, Robert M. Johnson,
Marion Paddy, v. Department of Commerce
01996615; 01997122; 01997156; 01997223
January 24, 2001
.
Joseph A. Bruzzese,
William C. Hulcher,
Robert M. Johnson,
Marion Paddy,
Complainants,
v.
William M. Daley,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal Nos. 01996615; 01997122; 01997156; 01997223
Agency Nos. 97-63-0009; 97-63-0052; 97-63-0010; 97-63-0402
DECISION
Complainants timely initiated appeals from a final agency decision (FAD)
concerning their complaints of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> Complainants alleged that they
was discriminated against on the bases of age when the agency failed to
select them for the position of Supervisory Public Accounting Specialist,
GS-0501-13.<2> The appeals are accepted pursuant to 29 C.F.R. � 1614.405.
In light of the similar nature of the complaints at issue, we have
consolidated appeals for review pursuant to 29 C.F.R. � 1614.606.
The record reveals that during the relevant time, complainants were
employed as either Social Science Analysts or Senior Public Finance
Specialists at the agency's Bureau of the Census, Government Division,
Upper Marlboro, Maryland. On August 1, 1996, the agency issued an internal
agency vacancy announcement for three Senior Public Accounting Specialist
positions. The positions were temporary, not to exceed December 31, 1998.
Complainants were among seventeen applicants found to be qualified for
the positions. A three-person panel consisting of senior management
officials met and evaluated the applications. To rank the applicants,
the panel utilized the following factors: (1) knowledge of various aspects
of public accounting; (2) experience in automated accounting systems;
(3) experience communicating with federal, state and local officials;
(4) experience in performing data research; (5) leadership experience;
and (6) performance appraisals and awards. After rating and ranking the
applicants, the panel referred the twelve highest ranked applicants to
the selecting official. All of the complainants, except for complainant
Paddy, were referred to the selecting official. The selecting official,
the Assistant Division Chief, Evaluation and Information Systems,
interviewed the twelve applicants. In addition, the selecting official
received input from the two Branch Chiefs of the divisions for which the
applicants currently worked. The Branch Chiefs rated the applicants on
leadership qualities, foresight vision, technical abilities, critical
thinking and long-term prospects in management. After analyzing the
interviews and the Branch Chiefs' ratings, the selecting official offered
the positions to the three selectees.<3>
Believing that the agency had committed unlawful discrimination,
complainants sought EEO counseling and subsequently filed formal
complaints between October 24, 1996 and January 16, 1997. At the
conclusion of the separate investigations, complainants were informed
of their rights to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
Complainants each requested that the agency issue a final decision.
The agency consolidated the complaints and issued one FAD for all of
the complaints.<4>
In its FAD, the agency concluded complainants provided direct evidence
of age discrimination in that they have demonstrated that the selecting
official for the disputed vacancies repeatedly expressed a preference
to his management staff for younger employees. Specifically, various
management officials stated that the selecting official made clear his
desire to hire and promote younger applicants and employees. The agency
then concluded that pursuant to Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), the burden shifted to management to prove that it would have
made the same decision absent age discrimination. In this respect, the
agency found that management stated that regarding complainant Paddy,
her score from the initial three-person panel was not high enough to be
referred for an interview.<5> As to Complainants Hulcher and Johnson,
the agency stated that their scores from the interview and Branch
Chief ratings were substantially lower than the selectees. The agency
concluded that based on its explanations, management proved that absent
discrimination, complainants Hulcher, Johnson and Paddy would not have
been selected for the positions.
Regarding complainant Bruzzese, the agency found that the three-person
panel rated him higher, than the selectees. In addition, the agency
found that the ratings of the selecting official and Branch Chiefs
indicated that complainant Bruzzese scored as well or better than the
two substantially younger selectees. As result of these findings, the
agency found that the evidence did not prove that absent discrimination,
complainant Bruzzese would not have been selected for the one of the
positions in question. As a result, the agency found discrimination
and retroactively promoted complainant Bruzzese to the GS-13 Supervisory
Public Accounting Specialist position.
On appeal, complainant Bruzzese contends that while he agrees with
the FAD's finding of discrimination in his case, he believes that he
should be converted from a temporary GS-13 to a permanent GS-13 as were
the selectees. Complainant Bruzzese also contends that he is entitled
back pay from the date of the original selections to the date of his
permanent conversion to a GS-13. Complainant Johnson contends that the
selecting official's impermissible preference for younger employees so
tainted the process that the FAD was incorrect in finding that absent
discrimination, the agency would not have selected him. Complainant
Paddy contends that the three-person panel improperly rated her on the
leadership factor. She further contends that the evidence supported
that she had the leadership experience to justify a higher rating for
the factor. Complainant Hulcher made no new contentions on appeal.
The agency responds by restating the position it took in its FAD, and
requests that we affirm its FAD.
ANALYSIS
As a preliminary matter, we note that inasmuch as the subject appeals
relate to the same matter, the Commission has consolidated the appeals
for joint processing. See 29 C.F.R. � 1614.606.
Direct evidence of discrimination may include any action, or any
written or verbal policy or statement made by an agency official
that on its face demonstrates a bias against a protected group and is
linked to the complained of adverse action. Jaakkola v. Department of
Commerce, EEOC Request No. 05950390 (August 29, 1996); see also Grant
v. Hazelett Strip Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989)
(direct evidence of age discrimination found where decision-maker said
in a memo that he wanted a �young man ... between 30 and 40 years old�
and verbally said that he wanted �a young man and that's what I want
and that's what I'm going to have�). The McDonnell Douglas test is
inapplicable where complainant presents direct evidence of discrimination.
TWA v. Thurston, 469 U.S. 111, 121 (1985); Siao v. Department of Justice,
EEOC Request No 05950921 (September 12, 1997); see also Terbovitz
v. Fiscal Court of Adair County, Ky., 825 F.2d 111 (6th Cir. 1987)
(�[d]irect evidence of discrimination, if credited by the fact finder,
removes the case from McDonnell Douglas because the plaintiff no longer
needs the inference of discrimination that arises from the prima facie
case [using indirect evidence]�). In this case, the record provides
direct evidence of the selecting official making comments indicating
his desire to select younger employees for positions in his division.
As such, we find no reason to disturb the findings that the selections
in this case violated the ADEA in that the selecting official used age
as determinative factor in his selections.
Where direct evidence is credited in an employment discrimination case,
the case should be analyzed pursuant to the �mixed motive� analysis set
forth in Price Waterhouse, supra. Under this analysis, the agency while
in violation of the ADEA, can still avoid liability if it demonstrates
by a preponderance of the evidence that it would have made the same
decision absent the unlawful factor. Price Waterhouse, at 244-45, 253.
Complainant Bruzzese
In reviewing the record, we agree with the FAD that the agency failed
to demonstrate by a preponderance of the evidence that absent unlawful
age discrimination, it would have not selected complainant Bruzzese.
The evidence demonstrates that three-person panel rated complainant
Bruzzese higher than the selectees. In addition, the Branch Chiefs
evaluated complainant Bruzzese higher than one of the selectees and
equal to the other selectee. In light of the evidence, we affirm
the agency's finding of discrimination and liability with respect to
complainant Bruzzese. With respect to the issues raised by complainant
Bruzzese on appeal, subsequent to his filing his appeal, the agency
submitted a letter stating that it had placed him in the same permanent
position as afforded to the selectees using the same effective dates
as the selectees. Accordingly, we need not address these contentions
further, although the order accompanying this decision will order the
agency to place complainant Bruzzese in the same position as ultimately
afforded to the selectees. This will include back pay from the date of
the initial selection until the date when complainant Bruzzese actually
was placed in the GS-13 position.
Complainants Hulcher and Johnson
After reviewing the record, we find that the agency demonstrated
by a preponderance of the evidence that even absent unlawful age
discrimination, it would have not selected either complainant Hulcher
or Johnson. The three-person panel rated both complainants equal to the
selectees. The Branch Chiefs, however, rated complainants substantially
lower than the selectees. While we find that the selecting official
used unlawful age discrimination in his evaluation of the applicants,
we find that the record does not demonstrate that the Branch Chiefs
improperly used age as a determinative factor in their evaluations.
The record shows that while the Branch Chiefs ratings of complainants
Hulcher and Johnson were lower than the selectees, the Branch Chiefs
rated other applicants in complainants' protected group substantially
higher than complainants Hulcher and Johnson. We also noted that
when the applicants were themselves asked during the interview if he
or she could select any of the applicants other than him or herself,
five identified complainant Bruzzese, seven identified selectee one,
and two identified selectee two, but none identified complainants
Hulcher or Johnson. In light of the objective evidence independent of
the selecting official's improper use of age, we affirm the agency's
decision with respect to complainants Hulcher and Johnson.
Complainant Paddy
In reviewing the record, we agree with the FAD that the agency
demonstrated by a preponderance of the evidence that absent unlawful
age discrimination, it would have made the same decision to not select
complainant Paddy for one of the disputed positions. Other than
complainant's bare assertion that her age influenced the three-person
panel's rating of her application, the record is devoid of evidence
supporting her assertion. The three-person panel which initially rated
the applications, ranked complainant Paddy as 14th among the applicants.
Only the top twelve applicants were referred to the selecting official
for interviews and consideration for the positions. While complainant
contends that age influenced the panel, the record shows that the
panel rated several individuals in complainant Paddy's protected
group, including the other complainants in this matter, high enough
to be selected for interviews. While complainant Paddy asserts that
the panel did not properly credit her for her leadership experience,
the panel members stated that the rating was based on past experience
with complainant where in certain circumstances, she did not assume a
leadership role as had some of the other applicants. After examining
the evidence of record, we find that complainant Paddy failed to present
sufficient credible evidence proving that the panel used age as a factor
in her rating.
CONCLUSION
After a careful review of the record, including complainants' arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission affirms the agency's final
decision. We hereby remand the matter to the agency to take remedial
actions in accordance with this decision and the ORDER below.
ORDER (D0900)
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
Within sixty (60) calendar days of the date this decision becomes final,
promote complainant Bruzzese to the position of Senior Public Accounting
Specialist, GS-0501-13 retroactive to the date of the selections.
This position was a temporary position. However, if the selectees in
this matter were converted to permanent GS-13s, the agency will promote
complainant Bruzzese as a permanent GS-13, retroactive to the date the
selectees were converted.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant Bruzzese,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. 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."
Within a reasonable period of time, the agency is directed to conduct EEO
training (with emphasis on age discrimination) for the relevant management
staff at the Bureau of the Census, Government Division in Upper Marlboro,
Maryland. The agency shall address management's responsibilities with
respect to eliminating discrimination in the workplace and all other
supervisory and managerial responsibilities under the federal equal
employment opportunity laws enforced by the Commission.
The agency shall post at the appropriate site in the Bureau of the Census,
Government Division, Upper Marlboro, Maryland 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.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (S0900)
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 (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
January 24, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 We note that complainant Bruzzese also contends that the agency also
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. However,
he has not pursued this claim in this appeal.
3 Of the three selectees, two were under the age of 40. The selectee,
over the age of 40, declined the position. The third position was not
filled due to budget problems.
4 We note that while the agency's final decision included the complaints
of five separate individuals, only the four above-named individuals
filed appeals to the Commission.
5 The agency also did a separate disparate treatment analysis for
complainant Paddy, concluding that she failed to establish a prima
facie case of age discrimination because she failed to demonstrate that
substantially younger employees were treated more favorably, or that but
for her age, she would have been rated higher by the panel. The agency
also concluded that management articulated legitimate, nondiscriminatory
reasons for the rating which complainant did not demonstrate to be a
pretext for discrimination.