01A02308
06-20-2002
Joseph B. Flint, Complainant, v. Lt. Gen. Michael V. Hayden, Director, National Security Agency, Agency.
Joseph B. Flint v. National Security Agency
01A02308
June 20, 2002
.
Joseph B. Flint,
Complainant,
v.
Lt. Gen. Michael V. Hayden,
Director,
National Security Agency,
Agency.
Appeal No. 01A02308
Agency Nos. 96-030 and 97-016
DECISION
INTRODUCTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision concerning his complaints of
unlawful employment discrimination on the bases of national origin (Native
American), sex (male), and age (over 40) 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. For the reasons stated herein,
the agency's FAD is modified.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against him on the above-referenced bases when it
failed to select him for promotion in December 1994 and June 1995.
BACKGROUND
During the period in question, complainant was an Intelligence Analyst,
GG-12, at a Maryland facility of the agency.<1> Each quarter of a year,
the agency allocated promotion points<2> to its components. In this
instance, one of the directorates allocated points to each of its groups
and sought promotion recommendations from each group for that purpose.
Typically, for higher level promotions, such as those to the 13, 14, or
15 level, promotion review boards were convened. Boards were held from
the branch level to the group level, with each level making promotion
recommendations to the level immediately above it. Importantly, not
all persons who performed at the next grade level were recommended for
promotion. Ultimately, as the board process pertains to this case,
complainant's group (Group A) developed a list of employees who were
competitive for promotion to GG-13 during the third and fourth quarters
of 1994.<3> Group A, however, was only able to recommend eight employees
to its Directorate. The eight recommended employees were promoted and
the remaining employees from the group list went on a contingency list.
The Directorate submitted the GG-13 promotions to Personnel to compile
promotion statistics on various factors. The statistics revealed that
Group A did not recommend a minority for promotion. The Senior Personnel
Officer sent the Directorate Officer (DDO) a memorandum stating that
his Directorate was fine in the area of diversity except regarding
minority females. She asked if he would like to address the diversity
issue immediately by using a promotion point that he had saved for
extenuating circumstances or if he would like to postpone addressing
the issue until a subsequent promotion quarter. The DDO chose to use
the saved promotion point to promote a minority female. In November
1994, the Directorate asked each group to recommend a minority female
who was competitive for promotion to the GG-13 level. In response,
Group A recommended complainant, a minority male. The Directorate
immediately informed Group A that complainant was the wrong sex. Group A
then recommended a Hispanic female who was later selected (Selectee 1).
Selectee 1's Division Director opposed the recommendation of selectee
1 stating that she was in a developmental program and not performing on
the level necessary for promotion to GG-13.
In January 1995, Group A again conducted a promotion board process and
ultimately recommended a number of employees to the Directorate for
promotion to GG-13. One such employee was a female who was younger than
complainant. In June 1995, she was selected for promotion (Selectee 2).
Complainant was not recommended by Group A during this promotion cycle.
Complainant, believing that he was a victim of discrimination, sought
EEO counseling and, subsequently, filed two complaints. The two
complaints were later consolidated. Complainant alleged (1) that
the agency discriminated against him based on national origin (Native
American) and sex (male) in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. when
it failed to promote him to GG-13 in December 1994 and (2) that the
agency discriminated against him based on sex (male) and age (over 40)
in violation of Title VII and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. when it failed to
promote him to GG-13 in June 1995.
Investigations were conducted and complainant was informed of his right
to elect either a hearing before an EEOC administrative judge (AJ) or an
immediate final agency decision (FAD). Complainant chose the latter.
The agency issued a FAD finding no discrimination for both claims.
Specifically, the agency found that complainant established a
prima facie case of discrimination for both claims. It, however,
found further that complainant failed to show that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions,
i.e., a valid affirmative action plan for claim (1) and the selectee
was more competitive for promotion than complainant for claim (2),
were pretextual. This appeal followed.
Complainant, on appeal, stated that the record contains direct evidence
that discriminatory factors motivated both of his non-selections.
Complainant stated further that the agency failed to show that any
non-discriminatory reasons motivated its actions. Specifically,
regarding claim (1), complainant stated that the agency sought and
selected a person of a specific national origin (Hispanic) and sex
(female) although selectee 1 was not qualified for promotion to GG-13.
Regarding claim (2), complainant stated that he was better qualified
than selectee 2 and she was selected only because the agency sought
to promote females. The agency, in response to complainant's appeal,
stated that complainant's claims should be dismissed for untimely
contact with an EEO Counselor. The agency also stated that selectee 1
worked in a more difficult skill area than complainant and was qualified
for promotion to GG-13 and that selectee 2 was better qualified than
complainant for promotion.
ANALYSIS AND FINDINGS
With regard to the agency's contention that complainant's claims should
be dismissed for untimely EEO contact, we find that complainant initiated
such contact in a timely manner. He did not have occasion to reasonably
suspect<4> discrimination until April 30, 1996 for claim (2) when he
read a cash award recommendation for a supervisor, which referenced a
memorandum that the supervisor wrote that prompted an Office of Inspector
General investigation into non-merit based promotions for females.
Complainant did not have occasion to reasonably suspect discrimination
until February 1, 1997 for claim (1) when he read the investigative
report for claim (2), which detailed the selection of selectee 1.
The record reveals that complainant initiated EEO contact several days
later in both instances. In addition, we note that the agency did not
raise the issue of timeliness in its final decision.
Regarding claim (1), we find that there is direct evidence that the agency
set aside a promotion position specifically for a minority (Hispanic)
female, thereby violating Title VII. See 29 C.F.R. � 1608.4(c)(2)(i)
(EEOC affirmative action regulations defining �reasonable action� to
require avoidance of �unnecessary restrictions on opportunities for the
workforce as a whole�); Johnson v. Transportation Agency, Santa Clara
County, 480 U.S. 616, 641 (1987) (noting with approval that �[t]he Agency
earmarks no positions for anyone; sex is but one of several factors
that may be taken into account in evaluating qualified applicants.�)
The record contains evidence that, during the period in question, the
agency had a substantial imbalance in promotions for minorities and
females that may have warranted taking applicants' ethnicity and sex
into account in some promotion decisions. Nevertheless, we conclude
that the agency inappropriately used national origin and sex as the
sole factors for promoting selectee 1. Id. We note that, during the
period in question, selectee 1's supervisor stated that selectee 1 was
not ready for promotion because she was not producing work on the GG-13
level and was participating in a developmental program. We also note that
complainant's Office Director stated, in an affidavit, that complainant
was qualified for promotion. The Office Director stated further, however,
that complainant was not the next, best qualified candidate for a GG-13
promotion based on merit. The promotion recommendation list submitted
by complainant's office for the third and fourth quarters of fiscal year
1994 corroborate the Office Director's statement, in that it does not
contain complainant's name. Under the agency's promotion board process
for the period in question, complainant's name would have to be on
the recommendation list of his office to be eligible for consideration
by his group and then by his directorate. In addition, based on the
aforementioned memorandum from Personnel to the DDO, it is evident that
the DDO had the option to either make an additional promotion selection
to promote diversity in the area of minority females or to retain the
promotion point at issue for use in a subsequent quarter. Thus, we
find, that despite initial recommendation by his branch and division,
complainant would not have been selected even absent the misapplication
of the agency's affirmative action plan and that no one would have
received the promotion at issue if not a minority female. However, as
previously stated, we find that the agency violated Title VII by setting
aside the promotion position based solely on national origin and sex,
so we reverse the agency's finding of no discrimination for claim (1).
Regarding claim (2), we find that there is no direct evidence that
the selection was based on age or sex. We do find, however, that
complainant established a prima facie case of discrimination based on
both impermissible factors using circumstantial evidence. However, he
failed to show that the legitimate, nondiscriminatory reason articulated
by the agency for its action was pretextual. Essentially, we are not
persuaded that complainant was better qualified than selectee 2. We note
that selectee 2 was recommended for promotion by her office during two
quarters, whereas complainant was recommended by his branch and division,
but not by his office. The recommendations of the office supersede those
of the branches and divisions. Further, the Commission has previously
held that it is not our function to substitute our judgment for that of a
selecting official familiar with the present and future needs of his or
her facility and therefore in a better position to judge the respective
merits of each candidate unless other facts suggest that proscribed
considerations entered into the decision making process. Shapiro
v. Social Security Administration, EEOC Request No. 05960403 (December
6, 1996) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981);
Jenkins v. Department of Interior, EEOC Request No. 05940284 (March 3,
1995)). We find that complainant failed to show that the agency's action
was motivated by discriminatory factors.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, the Commission REVERSES the
agency's finding of no discrimination for claim (1) and remands the matter
to the agency, and AFFIRMS the agency's finding of no discrimination
for claim (2).
ORDER
(1) The agency is ordered to consider the issues of compensatory
damages<5> and attorney's fees<6>. Within ninety (90) calendar days
after the date this decision becomes final, the agency shall conduct
a supplemental investigation of the compensatory damages issue.
The complainant shall cooperate in the agency's efforts to consider
compensatory damages, and shall provide all relevant information requested
by the agency. If complainant is seeking attorney's fees, he shall,
through counsel, submit a request for attorney's fees in accordance
with the �Attorney's Fees� paragraph set forth below. No later than
sixty (60) calendar days after the agency's receipt of complainant's
submissions for the supplemental investigation and the attorney's fees
statement, the agency shall issue a final agency decision addressing
the issues of compensatory damages and attorney's fees. If there is
a dispute regarding the exact amount of compensatory damages and/or
attorney's fees, 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 enforcement or clarification must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
(2) The agency shall post a notice of the finding of discrimination in
accordance with the paragraph below entitled, �Posting Order.�
(3) 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 actions in accordance with this Order.
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Meade, Maryland 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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 20, 2002
__________________
Date
1According to the record, the facility was structured, from lowest
to highest, as follows: teams, branches, divisions, offices, groups,
and directorates.
2Each promotion point equated to a promotion.
3Based on the record, one list was compiled for both quarters.
Complainant was listed on the promotion recommendation lists of his
branch and division, but not on the list of his office or group.
4See Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999).
5Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. To receive
an award of compensatory damages, a complainant must demonstrate that
he or she 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. Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994) req. for recons. den. 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. 915.002 (July 14, 1992), at 11-12, 14.
6See Farrar v. Hobby, 506 U.S. 103 (1992).