01A23550
01-01-2003
Michael E. Cvijanovich, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Michael E. Cvijanovich v. Department of Veterans Affairs
01A13904 & 01A23550
January 1, 2003
.
Michael E. Cvijanovich,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 01A13904 and 01A23550
Agency Nos. 200K-1265 and 200K-1791
DECISION
Complainant timely initiated an appeal from final agency decisions
(FAD) concerning his complaint 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission REVERSES
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Veterans Service Representative at the agency's Fargo, North
Dakota Medical Center & Regional Office facility. Complainant sought
EEO counseling and subsequently filed formal complaints on April 17,
2000 and July 16, 2001, alleging that he was discriminated against on
the bases of age (D.O.B. 1/5/47, age 53 at time of first selection)
and reprisal for prior EEO activity when he was not selected for the
position of Veterans Claims Examiner (Rating Specialist) GS-11 under
Vacancy Announcements 99-40 (Agency Complaint 200K-1265, �Announcement
1") and 01-21 (Agency Complaint 200K-1791, �Announcement 2") and when
he was subjected to harassment based on his protected activity.
All procedural requirements were met and complainant requested that the
agency issue a final decision. The appeals are consolidated pursuant
to 29 C.F.R. �1614.606.
In its final decision concerning Announcement 1, the agency concluded that
complainant stated a prima facie case of age discrimination because he is
a member of the protected group covered by the ADEA, he was found to be
qualified for the position of Rating Specialist, he was not selected and
someone substantially younger than he, was selected. The agency further
concluded that the agency stated legitimate non-discriminatory reasons
why he was not selected which complainant failed to show were a pretext
for discrimination. Specifically, the agency stated that complainant,
though basically qualified, was not referred to the selecting official
(S/O1 - DOB 5/30/47) by the interview panel because complainant did not
interview well and the selectee (DOB 7/1/73) was better qualified based on
his experience and knowledge gained from representing veterans in their
hearings and appeals. The agency further found that although another
older candidate for the position appeared to be the best qualified,
S/O1 stated she received an unfavorable reference which eliminated him
from consideration.
Regarding his claim of reprisal, the agency concluded that complainant
established that S/O1 was aware of his EEO complaint activity in 1992 but
that he failed to establish a causal connection between his non-selection
and his EEO activity seven years earlier. In addition, the agency found
that there was no motive for the panel members or S/O1 to retaliate
against complainant as they were not involved in the previous complaint.
In the agency's final decision regarding Announcement 2, the agency
dismissed a claim on the grounds that it was a spin-off complaint alleging
dissatisfaction with the processing of the complaint. In particular,
complainant alleged that the agency's EEO liaison had improperly involved
the management official alleged to have discriminated in the scheduling
of witness testimony.
The balance of the complaint concerned complainant's non-selection on
April 20, 2001 and reprisal when complainant was subjected to harassment.
The agency concluded that complainant established a prima facie case
of age discrimination in that he is over the age of forty, he applied
for and was qualified for the position of Veterans Claim Examiner
(Rating Specialist) GS-7 through 11; he was not selected and a person
substantially younger was selected. Even so, the agency concluded
that it stated legitimate non-discriminatory reasons why complainant
was not selected. Specifically, the selecting official (S/O2) stated
that he looked for those who could work in a team environment and had
exhibited professionalism during the interview and could communicate
with a wide variety of individuals. S/O2 stated that complainant had
some of the qualifications but was not the best candidate because he had
a long history of failing to communicate with Rating Specialists and he
did not give the impression that he wanted the job. He also stated that
complainant �did not dress the part� because he wore a flannel shirt.
According to S/O2, the other applicants dressed the part and showed that
they were �hungry� for the job.
The agency found that there was some evidence to establish that the
events supporting complainant's claim of harassment had occurred.
The agency concluded however, that S/O2's questioning of complainant's
e-mail activities and criticizing his case production rate were normal
activities for a supervisor. In addition, the agency concluded that
the actions complained of were not sufficiently severe or pervasive to
constitute an objectively hostile work environment nor did complainant
establish a connection with his EEO activity.
Complainant's Contentions on Appeal
On appeal, complainant contends that in both selections, the agency
broke a long established practice of promoting individuals from within
the Adjudication Division to rating specialist positions. He argues
that S/O1's last selections were individuals much younger than those not
selected, and that she sought to hire younger people to offset the aging
of the office. He stated that S/O1 pre-selected JC who was 26 years old
at the time of his selection, had a high school diploma and was not a
VA employee. This was supported, he contends, by the testimony of one
of the interview panel members who wrote to S/O1 and objected to the
selection process. Complainant contends he was much more experienced in
the relevant area than the selectee who had no rating board experience
and had not done any ratings. Complainant contends that his position
description supports his claim that his duties prepared him for the
rating board position and that his college degree made him much more
qualified than the selectee.
Complainant argues that S/O1's claim that he could not communicate well
with others was a pretext because the agency counted on him to train
newer members of his team and he had been commended for being the one
trainees looked to for information. He further argued that he was strong
in team work because his team often made joint requests to management
to benefit and strengthen the division and that S/O1 had praised him
for this. He also argues that he had been rated exceptional in the
area of Individual Team Member Cooperation. Complainant contends the
selection was based on age because in addition to himself, those not
selected who were also employees of the Adjudication Division were 48,
51 and 53 years of age, all much older than the selectee.
Regarding the second round of selections, complainant contends that S/O2
also selected the youngest candidates because of budget considerations.
The second round of selections was the first time the positions had been
announced at lower grade levels. Complainant contends that S/O2 rejected
all older internal applicants in favor of younger lower grade level
employees even though S/O2 stated he preferred to promote from within.
Complainant contests S/O2's statement that he was not dressed for the
interview, stating that he dressed in business casual attire which was the
usual practice of the office. He contends that S/O2 could not be believed
because he selected individuals whom he knew virtually nothing about and
without looking at their performance evaluations or production records.
Complainant further contends that S/O2's statement that he could not work
with others was not supported by the testimony of rating board members.
Agency Contentions on Appeal
The agency restates many of the same conclusions it reached in its final
decisions- that complainant was not selected because he was not referred
by the selection panel in the first selection and his bachelors degree
was not a relevant consideration because the announcement did not require
a college degree. In the second selection, the agency reiterates that
S/O2's statement that complainant had poor communication skills and
was not a team player were legitimate reasons for not selecting him.
Finally, the agency contends that complainant was not subjected to
unlawful harassment because the incidents at issue were not severe and
were not shown to be connected to his prior protected activity.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Reeves v. Sanderson Plumbing Products Inc.,
530 U.S. 133, (2000); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
we find complainant establish a prima facie case of age discrimination.
In an ADEA case, to establish a prima facie case of age discrimination,
the complainant must show that he was over 40 years of age, a class
protected by the ADEA, that he was subjected to an adverse employment
action, and that he was treated less favorably than other similarly
situated employees younger than himself, i.e., he was accorded treatment
different from that given to persons who are considerably younger than he.
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). While
there is no bright-line test for what constitutes "substantially younger,"
that term has generally been applied to age differences in excess of
five years. See Hammersmith v. Social Security Administration, EEOC
Appeal No. 01A05922 (March 6, 2002).
We find, contrary to the agency's conclusion, that the agency's reasons
for complainant's non-selection Announcements 1& 2 are a pretext for
discriminatory animus toward complainant's age. We reach this conclusion
based on evidence that in its hiring, the agency exhibited a pattern
of preference for younger applicants in both selections; the candidate
selected under Announcement 1 was substantially younger than the other
candidates all of whom were over age 47; he had little relevant experience
compared to those not selected; the agency changed its practice of
promoting from within complainant's division for the position in order
to hire younger applicants; S/O1 admitted she had little knowledge of
JC's credentials or background, and disregarded as �immaterial� the
rankings of the panel who rated another older candidate higher.
In the selection under Announcement 2, S/O2 exhibited a pattern of
selecting the youngest applicants, the four selectees all of whom at 44,
40, 35 and 39 years of age were substantially younger than complainant;
two not selected were over age 50 and two not selected were over the
age of 45<1>; with the exception of one, the selectees' applications
indicated they had little or no related knowledge in the area covered
by the position compared to complainant; S/O2 did not give legitimate
reasons for not selecting complainant.
The Report of Investigation for Announcement 1 indicated that, of those
that applied, 14% or 8 applicants were under the age of 40; and 86% or
49 applicants were over the age of 40. The investigation also reported
the workforce profile of the Veterans Service Center where the positions
were located, revealed that 79% of employees were over age 40, and 21%
of employees were under age 40. Of those in the 996 series, there were
12 total employees, 10 of whom were 44 years of age and over. Two were
under age 40. Therefore, there was evidence that the Office had a much
larger percentage of older employees on the whole and in the series from
which it historically selected Rating Specialists, the great majority
were older employees.
The evidence also indicated that it is questionable whether JC possessed
the specialized experience at the next lower grade level required by the
agency's announcement. The evidence indicated that the selectee began
a training program through the Disabled American Veterans in January
1998. He had no prior experience in a related field and no higher level
education above the high school level. The training program he completed
included 6 months of university level course work in anatomy/physiology,
medical terminology; training in the applicable laws and regulations; and
12 months of on the job training representing veterans in filing their
claims for compensation for a total of 18 months. The record indicated
his training salary was $2,424.00 per month during this time period, the
equivalent of a GS-7 level salary according to the Office of Personnel
Management (OPM) 2000 General Schedule Locality Pay. The record contained
OPM qualification standards which indicated that a Ph.D. or equivalent
or 3 full years of higher level graduate education, or 1 year equivalent
to at least GS-9, is required for qualification at the GS-11 level.<2>
Therefore, based on objective OPM qualifications standards alone, JC
did not meet the minimum requirements at the GS-11 level.
In addition, the evidence reflects that one panel member wrote to S/O1
objecting to the conduct of the selection because of pre-selection
and S/O1's preference for an �unqualified and untrained� candidate.
The panel member also stated that JC was not �eligible for the job�
because of the complicated nature of the work of the Rating Specialist.
This assessment was corroborated by a current rating specialist.
He gave the opinion that JC was the least eligible for the job and had
limited exposure to the adjudicative process when compared to the other
applicants all of whom held the same jobs as complainant.
Our review of the evidence leads us to conclude that there was
pre-selection which strongly suggested age related bias on the part of
S/O1. Although neither Title VII nor the ADEA proscribes preselection
as long as it is not premised on discriminatory factors, such is not
the case in this instance. McAllister v. United States Postal Service,
EEOC Request No. 05931038 (July 28, 1994). In this case, S/O1 gave no
credible reasons for passing over the older applicants in favor of JC and
the interview panel she formed appeared to have no actual influence on
the selection. S/O testified that she picked the interview panel members
and devised the questions but she testified that she did not know to
whom the panel had given the most points and that it was �immaterial�.
There was no evidence that S/O1 interviewed any candidates referred by
the panel. In addition, S/O1 stated she did not know JC that well and
had not talked with his supervisor, yet she judged him to be �clearly
above the rest in medical terminology and anatomy and in his ability
to extract information from a case for an appeal.� We find that the
inconsistency in S/O1's statements indicates a lack of credibility in
the reasons she gave for making her selection.<3>
S/O1 stated that she widened the eligible pool of applicants because
there were not many within the service eligible to be promoted. Yet,
those rated highest by the panel, with the exception of JC, were all
from the Adjudication Division. Her reasoning cannot believed also
because the record indicated past selections had been made from those
who held the position of Veterans Claims Examiner of which there were
seven employees at the time of the selection and all of whom applied for
the job. S/O1's manner of selection indicated she gave no consideration
to the qualifications held by the other candidates since she rejected
all Veterans Claims Examiners with college degrees. They were all,
without exception, older than the selectee by at least 20 years.
With the exception of complainant and the highest rated candidate,
S/O1 offered no reason for rejecting the other candidates.
In the second selection, the agency's choices to fill these same kinds
of positions lend further evidence to a pre-disposition towards younger
candidates regardless of their skill level or experience in the field.
S/O2 selected an agency police officer GS-6; , a Medical Administration
Specialist GS-9 ; Community Based Outpatient Clinic Coordinator GS-9;
and a Claims Examiner GS-9 Finance (Debt Collection). There is no
evidence that the selectees had any experience related to the duties
and responsibilities of a rating specialist in the area of disability
ratings or processing claims for disability benefits.
Complainant testified that selections for the rating board had typically
been made from within the Adjudication Division. This was corroborated by
a current rating board member who testified that selections since at least
1970, had been made from the ranks of the Adjudication Division. It was
also supported by the Assistant Service Center Manager, a former rating
specialist, and a selecting official (S/O3) for the second selection,
who stated he had worked as a Veterans Claim Examiner prior to becoming
a Rating Specialist.
Complainant's position description supports that his position generally
gave him background and experience for the Rating Specialist position.
It states that Veterans Claims Examiners are required to be �well
informed on disability and death compensation and pension programs�
�prepares and or authorizes the full range of claims involving the
disability and death claims, determines the right of claimants under
applicable VA laws, rates; requests field examinations or investigations
to ascertain facts... pertinent to the resolution of a claim for veterans
disability or death benefits.�
The record indicates that under both vacancy announcements, a Rating
Specialist determines veterans' entitlement to service connected or
non-service connected disability benefits; evaluates evidence to determine
the degree of disability and eligibility for special monthly compensation
or pension benefits. The agency's announcements require the applicant to
have knowledge of pertinent laws, regulations and procedures pertaining
to veterans benefits programs, common medical terms and various sources
of evidence and information as well as knowledge of basic effective
dates and rating practices; the agency also required that the applicant
have �specialized experience equivalent to the next lower grade [that]
is typically in or related to the rating specialist position.� Based on
this description, and complainant's position description, it is apparent
that complainant's experience most nearly met the requirements the agency
set forth when compared to those who were actually selected.
S/O2 testified that he strongly believed in the office policy of promoting
from within the Adjudication Division but offered no credible explanation
for abandoning the practice in this instance. S/O2 stated only that those
applicants outside the office were the best candidates without more. For
the second round of selections, S/O2 and the S/O3 interviewed together.
SO2 stated he looked for �professionalism� and the �ability to work in a
team environment� as well as someone who � can deal with a wide variety
of communication levels� with veterans who have poor education or service
officers who are well educated. S/O2 denied that there were financial
considerations for advertising the positions at lower grade levels.
S/O2 also stated he did not look at performance evaluations of the
candidates unless the applicant raised them during the interview.
He stated the job of Rating Specialist was a �very difficult job,�
yet those selected appeared to have little background in the relevant
laws and regulations or in making decisions about disability ratings.
S/O2's reasons for his selections were vague and focused on factors
unrelated to the skills and abilities such as the fact that the selectees
�looked the part� or showed the most �hunger for the job.�
Of complainant, S/O2 noted he had a history of not communicating with
the Rating Specialists. He contended that complainant did not have
�the appearance of someone trying to get a professional job.� He also
stated complainant was a difficult employee to supervise and he had been
counseled on two occasions. S/O2 stated complainant made offensive
remarks to female employees, showed no promise and made no effort to
get promoted. S/O2 stated that he was concerned complainant could not
be trained and that S/O3 would be doing the training, yet S/O3 did not
corroborate S/O2 that complainant could not be trained or that he would
have difficulty training him. We find S/O2 to lack credibility because
the evidence did not support his statements. S/O3 did not testify
concerning conduct problems of complainant or that he was difficult to
supervise, nor did any other witness corroborate S/O2's contention that
complainant made offensive remarks to female employees. S/O2's assessment
of complainant's lack of promise, is inconsistent with his performance
evaluation where he was rated �highly successful�, and his achievement
levels for all critical elements were designated as exceptional.
In the area of Individual Team Member Cooperation complainant was
rated �exceptional�, and he was rated �fully successful� in the area
of Individual Dependability, Reliability and Conduct.� In the area of
communication, the evidence revealed that complainant received praise
for training newer staff members. He was also selected to deliver a
talk to the Minnesota Veterans Association at the time the selection
was made which is inconsistent with S/O2's statement that complainant
did not communicate well with others. Complainant was also required to
conduct interviews with veterans in the normal course of his work and
there were no complaints about his conduct of veteran interviews.
Moreover, S/O3 also did not point to qualifications but gave vague,
subjective reasons for making his selections. He stated he was not
acquainted with the selectees and had no work contact with them but their
�enthusiasm was quite good�. In not selecting complainant, he stated
complainant's �answers were not as involved as the selectees...his
answers were pretty generic.� While reliance on subjective criteria
is not unlawful, it may be indicative of a pretext for discriminatory
motive. Fodale v. Department of Health and Human Services, EEOC Request
No. 05960344 (October 16, 1998). We find that in this instance, the
selecting officials' vague unsupported and subjective reasons for not
selecting complainant, along with other evidence in the record, were
persuasive evidence of pretext for discrimination.
Based on the evidence as a whole, we find complainant has demonstrated
that but for his age, he would have been selected for the position
of Veterans Claims Examiner (Rating Specialist). We discuss below
complainant's claim of reprisal for his EEO activity related to his
first complaint filed for his non-selection in Announcement 99-40.
Reprisal
Complainant 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,
411 U.S. at 802). Specifically, in a reprisal claim, in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt supra at 324,
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), 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 his 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 action.
The Commission's policy on retaliation prohibits any adverse treatment
that is based on a retaliatory motive and is reasonably likely to
deter the complainant or others from engaging in a protected activity.
EEOC Compliance Manual Section 8, �Retaliation� No. 915.003 at p 8-13
(May 20, 1998). See also Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
Complainant stated a prima facie case of reprisal in that he established
that several incidents he alleged were retaliatory, occurred on or
about October 16, 2000, near the time he had filed an EEO complaint
regarding his first non-selection on April 17, 2000. According to the EEO
Counselor's report, witnesses were contacted about complainant's claims in
March 2000. S/O2 stated he was aware of complainant's protected activity.
Complainant alleged that he was harassed in reprisal for his EEO activity
when S/O2 questioned him about an e-mail message he sent to the Resolution
Management Office which was charged with processing his EEO complaint.
He testified that S/O2 stood behind him as he was composing the message
and then asked complainant whether he had his (S/O2's) permission
to send this message. Complainant also alleged that S/O2 came into
his work area and went through his files asking about his production.
Complainant alleged that S/O2 issued a memorandum on October 15, 2000
requiring him and three other journeyman claims examiners to submit
their work directly to him - two of whom had given testimony favorable
to complainant. Complainant alleged that on October 17, 2000, S/O2
questioned him about the length of his lunch break.
In support of complainant's claim, complainant's co-worker, a Veterans
Service Representative (DOB 10/12/51) testified that he felt intimidated
because S/O2 seemed to be involved in setting up the interviews for
witnesses called in complainant's EEO complaint and was aware of when
and where he would be giving his testimony. He further testified that
in October 2000, S/O2 �tightened things up around the office and he
scrutinized [complainant's] work along with mine.� He stated he had
also given testimony in complainant's first complaint and that S/O2 had
never inquired about his e-mail activity.
Another witness Senior Veterans Service Representative (DOB 2/22/56)
whose work station is physically located next to complainant's work
station stated he overheard S/O2 inquiring about complainant's e-mail
activity and questioning him about his files. He believed this was done
in reprisal for complainant's EEO activity because S/O2 had not questioned
anyone else about production and had not questioned him about e-mail.
He further testified that S/O2 was angry and slamming doors that day and
that S/O2 made three trips to complainant's work area to inquire about
his work. He noted that S/O2 had called him and four other employees
to meet with the EEO investigator and make a statement. This made him
feel �very uncomfortable.�
In response, S/O2 denied that he ever read complainant's e-mail or his
computer screen but at the same time he stated he knew that the e-mail
in question did not pertain to complainant's work. S/O2 acknowledged
that he asked complainant if he had his (S/O2's) permission to write
the e-mail. S/O2 testified that he had looked through other employees
files yet there was no corroboration by other workers that he had.
S/O2 denied that he knew who complainant's witnesses were but the record
indicates that witness interviews were conducted near his office and
he had some involvement in arranging their location.<4> We find S/O2
lacking credibility for several reasons and that his actions on the day
in question were most likely in reprisal for complainant's EEO activity.
First, S/O2's statements regarding complainant's production and his
issuance of a memorandum because of a lack of production were contradicted
by his written assessment that he had performed well during that time.
At the same time, S/O2 was critical of complainant's work, he acknowledged
that his office was second best in the nation in processing claims. S/O2
offered to produce records supporting his contention that complainant's
work level was dropping, but the record contains no documentation to that
effect. Complainant's performance appraisal rating him fully successful
in his production and in his interactions with customers and others, also
did not support S/O2 statements. The incidents regarding complainant's
lunch hour were disputed and no disciplinary action was noted.
Furthermore, the testimony of other employees including those noted above
confirmed that S/O2's actions were not normal, that he had not perused
other employees files, or checked other employee's e-mail activity.
These incidents in addition to S/O2's behavior towards witnesses preparing
to testify, leads the Commission to conclude that S/O2's actions were
in reprisal for complainant's EEO activity, and were likely to deter
complainant and others from engaging in protected activity.
Therefore, 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, we reverse the agency's final
decision and remand this case to the agency to take remedial actions in
accordance with this decision and Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
The agency will offer complainant the position of Veterans Claims
Examiner (Rating Specialist) GS-11 retroactive to the date of the second
selection on April 20, 2001. Complainant will have 30 days to accept
or reject the agency's offer.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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 will require S/O1 to take 8 hours of training on the
provisions and prohibitions of the Age Discrimination in Employment Act.
The agency will require S/O2 to take 16 hours of training on the
provisions and prohibitions of the Age Discrimination in Employment
Act and in particular prohibitions against retaliation for EEO activity.
The agency will consider taking disciplinary action against SO2 in
connection with our finding of discrimination based on reprisal. <5>
The agency is required to post notice as indicated by the Posting
Order below.
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fargo, North Dakota Medical Center
and Regional Office 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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 1, 2003
__________________
Date
1The agency did not provide birth dates for those not selected but
gave an age range for four out of seven as follows: �Complainant (not
selected (NS)) 50-54; NS2 50-54; NS3 45-49; NS4 45-49. (3 not selected
ages not known).�
2The Personnel Specialist testified that if the candidate's education
level was less than that of a Ph.D., it had no effect on his/her
qualification at the GS-11 level and that a college degree would have �no
weight.� We reject this evaluation as not supported by OPM's standards
which state that �equivalent combinations of experience and education
are qualifying where both education and experience are acceptable.�
U.S. Office of Personnel Management Operating Manual, Qualification
Standards for General Schedule Positions, �Group Coverage Qualifications
Standards for Administrative and Management Positions,� 4/4/2000.
3Also among the rejected applicants were two veterans, with disability
ratings, one of whom was a Veterans Claims Examiner, but who were both
much older than the selectee at 46 and 53 years of age at the time the
selection was made.
4The record indicated that complainant wrote a letter complaining about
the investigator's actions in coordinating witness interviews through
S/O2 which is corroborated by witnesses. This was an inappropriate
practice and violated the EEOC Management Directive 110 which requires
that �the investigator must maintain the appearance of being unbiased,
objective and thorough.� Chapt. 6-7.
5Commission regulations state that each agency shall take appropriate
disciplinary action against employees who engage in discriminatory
practices. 29 C.F.R. � 1614.102(a)(6). In promulgating this policy,
the Commission clearly stated that it could not discipline or order the
discipline of employees directly. 52 Fed. Reg. 41920, 41921 (October
30, 1987). Rather, the Commission stated that the requirement of
corrective, curative, or preventative action permits the Commission to
recommend that disciplinary action be considered by the agency. Id. The
Commission reaffirmed this policy in Cassida v. Department of the Army,
EEOC Request No. 05900794 (September 14, 1990), in which it stated that it
could not order an agency to take disciplinary action against a particular
individual, but could order the agency to consider taking disciplinary
action under appropriate circumstances. The implementation of 29
C.F.R. Part 1614 in 1992, and the implementation of the amendments to
Part 1614 in 1999 have not altered the Commission's policy in this regard.