0120120958, 0120121327, 0120121328, 0120121330 & 0120121331
05-23-2012
Julie Griffes, Mark J. Zajac, Patricia Kuczeswki, Patrick Grover, Laura Grover, Complainants, v. Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.
Julie Griffes,
Mark J. Zajac,
Patricia Kuczeswki,
Patrick Grover,
Laura Grover,
Complainants,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.
Appeal Nos. 0120120958
0120121327
0120121328
0120121330
0120121331
Agency Nos. RD-2009-00141
RD-2009-00147
RD-2009-00138
RD-2009-00142
RD-2009-00148
DECISION
On December 19, 2011, the Complainants filed an appeal from the Agency's September 30, 20111 final decisions 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeals timely and accepts them pursuant to 29 C.F.R. � 1614.405(a). We are consolidating the five appeals together because each concerns the same underlying facts and procedural history. See 29 C.F.R. � 1614.606.
BACKGROUND
At the time of events giving rise to this complaint, the Complainants worked at the Agency's Rural Development Area Office in Howell, Michigan.
By December 2007, Agency management developed a plan to realign Michigan's Rural Development services structure. The plan was developed by the Michigan State Director (male, born in 1945) and approved by the Agency's Under Secretary.2 The plan, known as the "Michigan business plan," included moving the Howell and Flint Area Offices to existing centers in Jackson and Gratiot respectively. However, some time in 2008, the Michigan business plan was modified to move the Howell Area Office and the Flint Area Office to the service centers in Mason and Owosso respectively. The Agency's stated reasons for the realignment were: 1) to support residents during continued economic volatility in Michigan; 2) streamline operations; 3) provide much needed resources to residents living in rural communities; and 4) build Agency's portfolios of products and services.
Between November 10 - 13, 2008, the five Complainants, along with all the other Howell employees, were informed that they were being reassigned to the Mason Office effective November 23, 2008. After the move, the Howell employees would retain their grade, step and rate of base pay. However, because of the geographic location of Mason (approximately 37 miles from Howell), the Howell employees would see a reduction in their locality pay.
The Complainants believed that the reassignment to Mason was a deliberate attempt to force the Howell employees (13 over the age of 40, 1 under 40; 9 female, 5 male) to retire or seek other employment in order to create vacancies to hire younger employees. Complainants based this belief on the lower locality pay and the statements made by the State Director at a teleconference concerning the realignment in which he said:
. . . we are concerned with the next generation of USDA Rural Development with succession planning, the kinds of young people that we should be hiring, training that we should be providing, the career paths that we should envision for growing successful relevant 21st century USDA Rural Development in the years to come.
In addition, the female Complainants believed that the move to Mason would result in fewer opportunities for females to move into supervisory/management positions. None of the three female Complainants were supervisors or managers at the time of the events at issue.
As a result of their concerns, the Complainants contacted the Agency's EEO Office. In January and February 2009, Complainants filed their individual EEO complaints alleging that the Agency discriminated against them on the basis of age (over 40) when, effective November 2008, the Agency reassigned the Complainants from the Howell Area Office to the Mason Area Office. We note that three of the Complainants also alleged that the Agency's action constituted discrimination based on sex (female).
Each complaint was investigated. At the conclusion of the investigations, the Agency provided the Complainants with a copy of the reports of investigation and notices of their right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with the Complainants' requests, the Agency issued final decisions pursuant to 29 C.F.R. � 1614.110(b).
In each of the decisions, the Agency found that Complainants established a prima facie case of disparate treatment because of age. The Agency then determined that the Agency had articulated legitimate, non-discriminatory reasons for the decision to close the Howell office and move to Mason. However, using a pretext analysis in some decisions and a mixed motive analysis in others, the Agency found that Complainants established that age played a role in the decision to move the Howell employees to Mason. The Agency first pointed to the State Director's statements on the teleconference as "direct evidence" of age discrimination. The Agency also noted that in violation of Agency policy, the State Director failed to conduct a Civil Rights Impact Analysis (CRIA) on the final plan to move the Howell employee to Mason to assess any adverse "civil rights" effect on employees.
As to the female Complainants who alleged that the Agency's action constituted discrimination based on sex, the Agency found that the Complainants failed to establish a prima facie case of disparate treatment based on sex because all the Howell employees, regardless of sex, were moved to Mason and there was no evidence that any male employee received higher locality pay or other more favored relocation reimbursement.
In addition, the Agency found that the plan to shut down the Howell office and move it to Mason had a disparate impact on employees over the age of 40, as well as female employee because 13 of the 14 affected employees were over 40 (93%) and 9 were female (64%). Although the Agency offered a business justification for its challenged decision, the Agency concluded that management's failure to conduct a CRIA on the move to Mason deprived it of the ability to establish that it utilized the least restrictive means of achieving its legitimate business goals.
Despite these findings of age and sex discrimination, the Agency then concluded that because of the current economic climate, the Agency would have made same decision even absent the discrimination.3 As such, the Agency concluded that Complainants were not entitled to any relief beyond attorney's fees and costs, training for managers and a posting notice.
The Complainants are all represented by the same attorney, who filed the appeals. In her brief in support of the appeals, she stated that she was appealing the Agency's decision to limit the relief available to Complainants. She argues that when discrimination is found, the Agency must provide Complainants with full, make-whole relief to restore him/her as nearly as possible to the position s/he would have been in absent the discrimination. She argues that the Agency failed to meet its burden of proving that it would have made the same decision absent the impermissible motive, relieving it of the duty to provide full relief. She did not, however, detail what additional relief Complainants are requesting.
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. (November 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").
In the cases at hand, in each of its final decisions, the Agency concluded that Complainants have proven that management's actions constituted disparate treatment based on age. Further, the decision determined that the Agency's realignment plan had a disparate impact on individuals over the age of 40 and women. Since the parties are not contesting the findings of discrimination, we shall accept the Agency's own determination that its actions constituted discrimination.
Therefore, the only issue on appeal is whether the Agency's decision awarded the appropriate remedies to the Complainants. Under our regulations, the Agency has an opportunity to limit damages following a finding of discrimination by demonstrating, by clear and convincing evidence, that it would have taken the same action even if it had not considered the discriminatory factor. See Smith v. Dep't of the Army, EEOC Appeal No. 0120073300 (Dec. 18, 2009) (clear and convincing standard applies to Agency's effort to limit relief after liability is established in a Title VII claim); cf. 29 C.F.R. � 1614.501(b)-(c) (noting in a variety of contexts that where there is clear and convincing evidence that the challenged personnel action would have been taken even absent discrimination, the Agency still is required to eliminate any discriminatory practice and ensure that it does not recur). If the Agency is able to make this demonstration, the Complainants are not entitled to personal relief, i.e., damages, reinstatement, hiring, promotion, or back pay, but may be entitled to declaratory or injunctive relief, as well as attorney's fees and costs. See Smith, supra, (citing Walker v. Social Security Admin., EEOC Request No. 05980504 (Apr. 8, 1999)).
However, based on the records before us, we are unable to determine whether or not the Agency has met its burden to limit relief in these cases. There are critical unresolved issues that require supplemental investigation in order to ascertain the appropriate remedies that should be awarded to each of the five Complainants. The Agency's final decision is unclear in defining with any precision what particular action of management was found to be discriminatory. Was it the decision to close the Howell office at all, or the decision to move to Mason rather than another location, or the decision not to provide relocated Howell employees with retained locality pay and/or some sort of relocation reimbursement once they moved to Mason? Moreover, with regard to the finding of sex discrimination, was there a finding that opportunities for promotion for female employees were somehow impacted? Without definition of the particular actions found to be discriminatory, there is no way of knowing what remedies Complainants might be entitled to. In addition, the record was not adequately developed as to what additional remedies Complainants are seeking. Neither the Agency in its final decision nor Complainants' attorney on appeal provides a recitation of the particular remedies Complainants are requesting or evidence in support of these requests.
Based on these critical gaps in the record, we cannot adjudication the issue of remedies at this time. Accordingly, we will order the Agency to conduct a supplement investigation to clarify the specific findings of discrimination by the Agency. Further, the Agency shall ask each Complainant to provide specific requests for their individual entitlement to remedies.4 Once these clarifications have been made, the Agency shall gather any additional evidence that addresses whether or not it would have taken the same actions even absent discrimination. During this supplemental investigation, Complainants should be provided the opportunity to rebut any additional evidence provided by management.
Once completed, Complainants shall be provided with a report of the supplemental investigation and shall be provided with the opportunity to request a hearing on remedies before an EEOC Administrative Judge (AJ). Each Complainant shall individually decide whether to request a hearing. If a Complainant opts for a hearing, the AJ shall review the record. If needed, the AJ shall preside over any additional discovery and may conduct a hearing, as appropriate, on the remedies to which the Complainant is entitled. The AJ shall issue a decision providing individually tailored remedies for each Complainant under 29 C.F.R. � 1614.109(g). Following the AJ's decision, the Agency shall issue its decisions either implementing or appealing the AJ's decisions as provided under 29 C.F.R. � 1614.110(a).
If any Complainant does do not elect to request a hearing before an AJ, the Agency shall issue a final decision on remedies to the Complainant pursuant to 29 C.F.R. � 1614.110(b). The Complainant's claim for remedies shall be addressed individually tailoring the award of remedies based on the findings of discrimination for each Complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's findings of discrimination, VACATE the decision on remedies, and REMAND the matter for a supplemental investigation on issue of remedies in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following action:
1. The Agency shall conduct a supplemental investigation within ninety (90) days of the date this decision becomes final on the appropriate remedies to which each Complainant is entitled. The Agency shall first clarify the precise actions it found to have found violated the ADEA and Title VII. Statements shall be gathered from each Complainant concerning what remedies he or she is seeking and any evidence to support the requests. Affidavits and other evidence shall be gathered to address the issue of whether or not management would have taken the same actions (once those actions have been clarified) even absent discrimination. Complainants shall be entitled to submit rebuttal evidence.
2. At the conclusion of the supplemental investigation, the Agency shall provide the Complainants with a report of investigation and an opportunity to request a hearing before an EEOC AJ on the issue of remedies.
3. Following the AJ's decision or request for an immediate final decision by the Agency, the Agency shall issue a final decision on each Complainant's individual entitlement to remedies.
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, but not be limited to, a copy of the report of the supplemental investigation and the notice of right to request a hearing, as well as any final decision or final order issued thereafter on the matter of remedies.
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
May 23, 2012
__________________
Date
1 We note that the Agency's decision was dated September 30, 2011. However, the certificate of mailing showed that the Agency mailed the decision to the Complainants on November 18, 2011.
2 As a former employee of the federal government, the Under Secretary declined to participate in the investigation of the instant complaints other than to assert that he did not engage in discrimination.
3 The Agency's legal analysis for this conclusion is very confusing. At one point in its final decisions it appears that the Agency is arguing that it successfully presented a mixed motive defense. However, 29 U.S.C. � 633a(a), which applies to age discrimination claims in the federal sector, requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age." (Emphasis added). Under this broad prohibition, liability is established where older age is a motivating factor for the Agency's decision, regardless of whether the Agency also has a legitimate reason for its employment decision. Therefore, in this case, because the Agency has already found age was a motivating factor, it cannot now attempt to avoid liability based on a mixed motive defense.
4 We remind the parties that the remedies available to prevailing parties under Title VII and the ADEA differ. The two male Complainants have only prevailed on their ADEA claims.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120958
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120958, 0120121327, 0120121328
0120121330 & 0120121331