01976055
08-27-1999
Annie Houston, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Annie Houston, )
Appellant, )
) Appeal No. 01976055
v. ) Agency No. 96-0558
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity and discrimination based on race
(African-American) and age (DOB: 5/27/40), in violation of Title VII
of the Civil Rights Act of 1964, 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. Appellant alleges she was discriminated against
when, on September 8, 1995, she was notified of her non-selection for
the position of Chief, Loan Processing Section, under Announcement Number
15-95. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is REVERSED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as a Supervisory Loan Specialist, GS-11 at the agency's Los Angeles,
California regional office. Believing she was a victim of retaliation
and discrimination when she was non-selected for the Chief position
and a candidate nineteen (19) years her junior was selected, appellant
sought EEO counseling and, subsequently, filed a formal complaint on
April 16, 1996.<1>
At the conclusion of the investigation, the parties received a copy
of the report of investigation (ROI). The ROI recommended a finding
that appellant: (1) failed to establish a prima facie case based on
reprisal; (2) established a prima facie case of discrimination based
on race, but failed to demonstrate by a preponderance of the evidence
that her non-selection was based on her race; and (3) established by
a preponderance of the evidence that her non-selection was based on
her age, by demonstrating that management's proffered reason for her
non-selection was pretextual. In support of the recommended finding of
age discrimination, the ROI relied, inter alia, on the following evidence:
� appellant had approximately five (5) years supervisory experience as a
GS-11, and had served numerous times in an acting capacity in the Chief
position at issue, whereas the selectee had no supervisory experience;
� although not a requirement for the position, appellant had a four-year
college degree, whereas the selectee had no college degree;
� the selecting official ("SO1"), who at the time served as Loan
Guaranty Officer, said in a discussion about a different position
selection, "what I'm trying to do is get rid of the old baggage,"
SO1's Affidavit at 10;
� on September 5, 1996, SO1 singled out appellant while announcing new
retirement provisions, sua sponte remarking to her "[t]heoretically
. . . you have enough service years and age to retire without any
penalty to your annuity," Appellant's Affidavit at 4, lines 13-15;
� on July 18, 1995, during a meeting, SO1 stated that with appellant's
"vast knowledge and experience," she "could go out and become a
consultant with lenders," Appellant's Affidavit at 3, lines 47-49; and
� SO1 explained his non-selection of appellant as follows:
[The selectee] had an involvement with [the union]; I thought that was
a positive . . . I thought that she had some (I don't know what the
right word is) but more human relations, I'll put it that way. She had
a concern in that respect, and that was a positive. Another factor was
that she [had previously] worked in the private sector in the mortgage
banking industry, and I felt that that added a new dimension because we
deal particularly in that section with [that industry] and she had some
background [in it]. You just have to feel that business and I think
she had empathy, if you will, for that line of business.
. . . from a standpoint of supervision . . . I didn't believe [the
selectee] had a lot of experience, and I didn't think that � just the
opposite: I did think that I'm kind of looking for potential and I
guess that's somewhat subjective if you will, but in terms of technical
experience you know, I felt that [the selectee] was technically qualified
. . . .
SO1's Affidavit at 3-6. However, upon further questioning from the
investigator, SO1 acknowledged that he did not know how many years of
experience the selectee had in the mortgage banking industry, and did
not know whether or not appellant or any of the other candidates had
any such experience. SO1's Affidavit at 4.
The ROI noted that the selectee only "exceeds" the complainant in that
the selectee's performance appraisals included two "outstanding" ratings,
one "highly successful," and one "fully successful," whereas appellant had
two "highly successful" ratings and five "fully successful." ROI at 10.
However, when asked by the agency investigator about his reasons for
appellant's non-selection, SO1 did not cite this difference in appraisals
as a factor. See SO1's "Preliminary Affidavit" and Affidavit.
Upon forwarding the ROI, the agency informed appellant of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Appellant did not request
a hearing, and the agency proceeded to issue a FAD.
In its FAD, the agency concluded that appellant failed to establish
a prima facie case of retaliation because the protected activity in
which she engaged preceded her non-selection by one year. The FAD
further concluded that while appellant had established a prima facie
case of race and age discrimination, and even assuming appellant had
established a prima facie case of retaliation, the agency proffered
legitimate, nondiscriminatory reasons for appellant's non-selection,
which appellant had failed to show were pretextual. Specifically, the
FAD credited SO1's testimony that the selectee "presented with more
concern for the human relations factor involved in management," and was
favored for her private-sector experience. The FAD also concluded that
the selectee received recognition from top-level management officials at
the Central Office when she was selected for a special training conference
involving the Loan Guarantee Program.<2> The FAD further relied on
SO1's testimony that prior to the selection, management officials had
discussed the need to change management practices in the Loan Processing
Section, and thus agreed on a plan to restructure the Loan Guaranty
Program and identified the need to select a candidate for the Chief
position who demonstrated potential for implementing these changes.
SO1 testified that the selectee had presented in the interview with the
most potential for making these changes. The FAD also credited SO1's
explanation that his statement regarding "old baggage" referred to an
attempt to shed the allegedly "bad reputation[] as a Regional Office."
SO1's Affidavit at 10, lines 40-43.
Appellant has advised this Commission that on appeal she is pursuing
solely her age discrimination claim. See Appellant's brief at 3.
Accordingly, we will not address the FAD's findings on race and
retaliation. The agency stands on the record and requests that we affirm
its FAD.
Applying the standards set forth in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979) (requiring a showing that age was a determinative factor, in
that "but for" age, appellant would not have been subject to the adverse
action at issue), we find that, contrary to the agency's conclusion,
appellant did demonstrate that the agency's proffered reasons for
her non-selection were pretextual, and proved by a preponderance
of the evidence that the true reason for her non-selection was age
discrimination.
In reaching this conclusion, we note that appellant had five years of
supervisory experience, including periodically serving as Acting Chief,
whereas, in stark contrast, the selectee had no supervisory experience.
Moreover, the search for the position was conducted three times, having
been canceled and then re-announced as a GS 11/12/13 position, rather
than the original GS 12/13 position for which the selectee, a GS-9,
did not qualify. Although SO1 contends that the position at issue was
twice re-announced because numerous management and "program integrity"
problems in the Loan Guaranty Division necessitated that several
vacancies be announced nationwide at the lowest possible technical
levels to attract a broad spectrum of candidates (SO1's "Preliminary
Affidavit" at A-3), during each of the first two searches the selectee
confided to a co-worker in the Loan Guaranty Division (CW1), while
the search was allegedly still ongoing, that she had knowledge that
neither appellant nor the other senior employee would be selected.
See CW1's Affidavit at 4-5. The content and timing of these comments
by the selectee, together with the downgrading of the position, suggest
that SO1 pre-selected the prevailing candidate. In addition, CW1 heard
SO1 say that in order for someone without management experience to be
selected for the Chief position, the individual would have to be "super
super super qualified," Affidavit of CW1 at 5, whereas SO1 acknowledged
during the investigation that the selectee was "technically qualified."
Further, we do not find credible the SO1's non-discriminatory explanation
of his comments regarding getting "rid of old baggage" and sua sponte
advising appellant that she was old enough to retire.
Moreover, SO1's explanation for his selection, quoted above, is belied
by his own admissions and the documentary record. For example, SO1
testified that the selectee was favored in part for her private mortgage
industry experience, but then conceded that he did not know how much such
experience she had, and whether or not any of the other candidates had
such experience. Similarly, SO1 testified that he favored the selectee
because she had participated in a volunteer program devoted to agency
restructuring, which was allegedly to be a task of the new Chief, yet
neither the vacancy announcement nor the position description make any
reference to this duty.
SO1's remaining explanation of the reasons for his selection consisted
of imprecise, subjective factors. The use of subjective criteria by
a selecting official, while not impermissible, may offer a convenient
pretext for unlawful discrimination. This is particularly true where
a complainant is found to be objectively better qualified than the
selectee. Thornton v. Coffey, 618 F.2d 686, 691 (10th Cir. 1980);
Parker v. United States Postal Service, EEOC Request No. 05900110
(April 30, 1990). Cf. Schultz v. Department of Veterans Affairs, EEOC
Petition No. 05980483 (January 29, 1999) (age discrimination in promotion
found where, even though selectee's "outstanding" rating was higher than
appellant's "fully successful," there was no evidence the evaluations were
a deciding factor in the decision, the appellant's qualifications were
superior to the selectee's, the selectee lacked supervisory experience,
and the Recommending Official's proffered reason for favoring the selectee
"was subjective, and therefore, suspect").
To the extent management contended below that SO1 only had authority
to recommend a candidate, but that "the actual selection was made" by
the regional director "with concurrence from our Western Area office,"
we note that this is belied by SO1's own affidavit at 1, line 40, wherein
he attests that he made the selection. Moreover, the agency has adduced
no evidence that SO1's recommendations regarding promotion decisions
are not routinely approved, or that the "actual selection" by the agency
director entails substantive consideration rather than a rubber stamping.
Further, it is possible for a complainant to prevail where the employee
with discriminatory animus provided factual information or other input
that affected the adverse employment action. Dey v. Colt Constr. &
Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994); see also Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997) (stating that
prejudice of employee may be imputed to decision maker if employee,
by feeding false information, was able to influence decision). In the
instant case, evidence that SO1 was motivated by appellant's age, that he
contends he made the selection decision, and that at the very least his
recommendation yielded the agency's approval of appellant's non-selection,
is sufficient to establish liability under the "but for" standard.
Accordingly, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we find that appellant has
demonstrated age discrimination by a preponderance of the evidence, and
we REVERSE the FAD and REMAND this case to the agency to take remedial
actions in accordance with this decision and order below.<3>
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall promote appellant to the Chief position or a
substantially equivalent position, retroactive to the effective date of
the selection. Appellant shall also be awarded back pay, seniority,
and all other employee benefits from the date of the effective promotion.
2. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due appellant, pursuant to
29 C.F.R. �1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant 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 appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant 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."
3. The agency shall ensure that no employees who are applicants for
positions are subjected to age discrimination in violation of the ADEA.
4. The agency is directed to conduct training for the Selecting Official
and other managers who played a role in discriminating against appellant
by not selecting her. The agency shall address these employees'
responsibilities with respect to eliminating discrimination in the
workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law.
The agency shall provide a minimum of eight (8) hours of remedial
training for all managers and supervisors located at the Los Angeles
Regional Office, to ensure that acts of age discrimination do not recur,
that no retaliatory acts are taken against any employee who opposes
unlawful discrimination, and that persons reporting instances of alleged
discrimination are treated in an appropriate manner.
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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Los Angeles Regional Office 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
August 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AN AGENCY OF THE UNITED STATES GOVERNMENT
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privilege of employment.
The Department of Veterans Affairs Regional Office, Los Angeles,
California, supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under the law. The agency shall therefore remedy the discrimination found
by the Commission by retroactively promoting this individual, providing
the affected individual with any applicable backpay and benefits,
including interest where applicable, providing relevant agency officials
with EEO training, and submitting a report to the Commission regarding its
compliance with these requirements. The Department of Veterans Affairs
Regional Office, Los Angeles, California, will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all Federal equal employment laws and
will not subject employees to age discrimination.
The Department of Veterans Affairs Regional Office, Los Angeles,
California, will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to oppose
practices made unlawful by, or who participated in proceedings pursuant
to, Federal equal employment opportunity law.
______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614.1Although the investigative report and FAD both
state that appellant's formal complaint was filed on April 16, 1996,
appellant asserts in her brief on appeal that her "initial complaint
letter" was filed on December 19, 1995. While this letter does not
appear in the record, appellant has attached a copy as exhibit 2 to her
appellate brief. The record does contain the formal discrimination
complaint form on April 16, 1996. To the extent the April 16, 1996
form raises claims of discriminatory and retaliatory harassment and
reassignment/demotion, these claims are not at issue on appeal inasmuch
as appellant has advised that she is solely pursuing her non-selection
age discrimination claim on appeal. Appellant's brief at 3.
2The relevant evidence in the record consists of testimony by SO1 that one
management official, the Assistant Director for Loan Policy in the central
office, "had said that they were very impressed" with the selectee, SO1's
Affidavit at 4-5. SO1 also testified that he was aware the selectee had
been chosen by management to serve on a volunteer committee relating to
restructuring of the Loan Guaranty Division.
3We note that the Commission has previously determined that neither
compensatory damages nor attorney's fees are available in federal
sector complaints brought under the ADEA, and therefore neither of these
remedies is available to complainant in the administrative process in the
instant case. Taylor v. Department of the Army, EEOC Request No. 05930633
(January 14, 1994); Patterson v. Department of Agriculture, EEOC Request
No. 05940079 (October 21, 1994).