EEOC Appeal No. 0120120184
08-06-2015
Complainant v. Dep't of Veterans Affairs
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120184
Hearing No. 550-2011-00347X
Agency No. 200P00102010104757
DECISION
On October 3, 2011, Complainant filed an appeal from the Agency's September 12, 2011, final order concerning his equal employment opportunity (EEO) complaint 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
Did the U.S. Equal Employment Opportunity Commission Administrative Judge (AJ) properly issue a decision without hearing? Did Complainant establish by a preponderance of the evidence of the record that he was subjected to discrimination when he was not selected for a Statistician position?
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Agency employee. Complainant previously filed EEO complaints during his employment with the Agency.
On May 19, 2010, Complainant applied for a full-time Statistician position at the San Francisco VA Medical Center in San Francisco, California. Complainant was one the applicants selected for a telephone interview.1 The interview panel consisted of four individuals (S1, S2, S3, and S4), who were tasked with selecting one application for recommendation to the selecting official (S5).
Prior to the interviews, one of the members of the interview panel (S1) performed a Google search of every applicant's name, which panel members stated is a standard practice for all selections. Through his Google search, S1 found a Commission appellate decision and learned that Complainant "filed a complaint against the Palo Alto VA, which was not upheld." Report of Investigation (ROI), Exhibit B3, p. 147. S1 stated in his affidavit that he discussed what he learned about Complainant's prior protected EEO activity with the other members of the review panel. He stated that Complainant's prior protected EEO activity was "impossible to ignore" and "yes, I think it was taken into consideration" by other panel members. Id. at p. 151. The panel ultimately recommended another applicant to S5, who selected the applicant for the position.
On September 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Taiwan), age (61), and reprisal for prior protected EEO activity when he was not selected for the position of Statistician.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's August 16, 2011, motion for a decision without a hearing and issued a decision without a hearing on August 29, 2011. The AJ found that Complainant failed to establish that the Agency's legitimate, nondiscriminatory reason for not selecting Complainant was a pretext for discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when she issued a decision without a hearing. Complainant asserts that he established by a preponderance of the evidence that he was not selected for the Statistician position based on discriminatory animus. Complainant contends that the record establishes that the Agency's reasons for its actions are a pretext for discrimination. Complainant also asserts that his qualifications are plainly superior to the qualifications of the Selectee.
In opposition to the appeal, the Agency contends that AJ properly issued a decision without a hearing. The Agency also contends that the AJ properly analyzed the evidence in the record, including her conclusion that mere knowledge of prior protected EEO activity does not establish discrimination. The Agency asserts that it articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position, and Complainant did not establish that those reasons were a pretext for discrimination.
ANALYSIS AND FINDINGS
Decision Without A Hearing
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that the AJ's issuance of a decision without a hearing was appropriate because no genuine dispute of material fact exists. However, we find that the AJ erred in finding in favor of the Agency, as the record reflects by a preponderance of the evidence that Complainant was subjected to reprisal for his prior protected EEO activity, as discussed below.2
Disparate Treatment
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. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 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 the 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 treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). Once Complainant establishes a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Here, Complainant established that he engaged in protected EEO activity, and that all of the members of the interview panel knew about his protected EEO activity. Complainant established that he was subjected to an adverse action when he was not selected for the Statistician position. There is a nexus between the protected EEO activity and the non-selection because S1 stated that he and the other interview panel members learned of Complainant's EEO activity before Complainant was interviewed for the position. As a result, Complainant established a prima facie case of reprisal discrimination.
Once Complainant establishes his prima facie case of reprisal discrimination, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. The Agency stated that the Selectee was chosen for the position because he was better qualified for the position.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward him because of her prior protected EEO activity.
We note that an Agency has broad discretion to carry out personnel decisions, such as hiring decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Stiles v. Dep't of Transp., EEOC Request No. 05910577 (June 27, 1991). Here, we find that there is evidence in the record that there was unlawful motivation in the Agency's decision to not select Complainant for the position.
There is no question that Complainant was highly qualified for the position. The average score of the panel members' ranking of the original application package resulted in Complainant being ranked highest and tied with the Selectee at a score of 20. ROI, Exhibit C10, p. 248. The record shows that all of the panel members marked Complainant high, and some ranked him the highest by a few points, except for S1 who ranked him lower than the other applicants. Id. at 251. Had S1 not rated Complainant so low, his ranking would have been higher than the Selectees' ranking. The question now turns to whether Complainant's EEO activity played a role in the panel's decision not to select Complainant for the position.
S1 stated in his affidavit3 that he became aware of Complainant's EEO activity after he did a Google search of Complainant's name. ROI, Exhibit B3, p. 147. Specifically, S1 stated that he learned through Google that Complainant filed an EEO complaint against an Agency official in the Agency's Palo Alto facility, and that Complainant was not successful in his complaint. Id. It is worthy to note that S1 previously worked at the Agency's Palo Alto facility.
S1 stated that before the interviews he told the other panel members about Complainant's prior protected EEO activity. Id. at 151. Other members of the panel confirmed that S1 told them about Complainant's prior EEO activity, and as a result Complainant's prior complaint against the Palo Alto VA was discussed during a meeting. ROI, Exhibit B2, p. 128. After the interviews, Complainant went from being the highest ranked applicant to the lowest ranked applicant. ROI, Exhibit C12, p. 260. While the Agency asserts that Complainant did not interview well, Complainant stated that his interview was great and most of the panelists responded to each of his answers with exclamations such as "excellent!"
The AJ stated that mere knowledge of prior EEO activity, without more, is insufficient to establish reprisal discrimination. However the AJ did not refer to S1's sworn affidavit, where S1 stated that the panel took Complainant's EEO activity into consideration. Specifically, the following are S1's responses to the investigator's questions:
Q: Did you discuss [Complainant's] EEO activity with the other members of the review
panel?
A: Yes.
Q: What did you tell them?
A: That I Googled him and I had seen that he had filed an EEO complaint against the
Palo Alto VA.
Q: Do you think that was taken into consideration by the other panel members?
A: I think it's impossible to ignore, so, yes, I think it was taken into consideration.
ROI, Exhibit B3, p. 151.
This establishes that at least for S1, and more likely than not the whole panel, Complainant's prior protected EEO activity was taken into consideration when the decision was made to not refer Complainant to the selecting official. As a result, we find that the record establishes by a preponderance of the evidence that the panel was motivated by retaliatory animus when they made the decision not to refer Complainant for the Statistician position.
The Agency asserted that it does not matter if the interview panel knew about Complainant's EEO activity because they did not make the final determination of who to select for the position. Further, the record reflects that the selecting official (S5) stated that he did not know about Complainant's prior protected EEO activity. ROI, Exhibit B6, p. 196.
Even if we were to assume arguendo that S5 was unaware of S1's and the interview panel's retaliatory motivations, under the "cat's paw" theory, the Agency is still liable for the discrimination based on the discriminatory or retaliatory animus of an individual (or individuals) who greatly influences, but does not make, the ultimate employment decision and the Agency blindly relies on the individual's discriminatory assertions in making the ultimate employment decision. See Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011); Jones v. National Security Agency, EEOC Appeal No. 0720120011 (June 11, 2013); Feder v. Dep't of Justice, EEOC Appeal No. 0720110014 (July 19, 2012). Here, the record shows that the interview panel selected only one applicant to refer to S5; the Selectee. As a result, the panel (including S1) clearly influenced, but did not make, the ultimate employment decision to not select Complainant for the position, and S5's decision to not select Complainant was based on reliance on the panel's biased recommendation. Therefore, the Agency is liable for the discrimination.
Having found discrimination based on prior protected EEO activity, we need not address Complainant's claims of race, national origin, and age discrimination, as it would not change the relief ordered.4
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision, as a preponderance of the evidence in the record establishes that he was subjected to reprisal for his prior protected EEO activity when he was not selected for the Statistician position. We ORDER the Agency to comply with our Order below.
ORDER
The Agency is hereby ORDERED to:
1. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency shall offer Complainant the position of Statistician, GS-13, or a substantially equivalent position at the San Francisco VA Medical Center in San Francisco, California, retroactive to the official date that the Selectee began in the position. Complainant will have fifteen (15) days to accept the position, and he must do so in writing. If no substantially equivalent position is available, then the Agency shall pay Complainant front pay within sixty days of the date it determined that no position was available. From pay shall be awarded until Complainant has been placed in the appropriate position as stated above. If there is a dispute regarding the exact amount of front pay, the Agency shall issue a check to Complainant for the undisputed amount within sixty days of the date the agency determines the amount it believes to be due. 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."
2. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency must pay Complainant back pay and benefits, with interest, including intervening step increases Complainant may have lost, for the period of the date the Selectee began in the position to the date of this decision. All back pay calculations should be computed in accordance with 5 C.F.R. � 550.805. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute.
3. The Agency shall conduct a supplemental investigation into Complainant's compensatory damages and attorney's fees and costs. The Complainant shall cooperate in the Agency's efforts to compute the compensatory damages, attorney's fees, and costs, and shall provide all relevant information requested by the Agency. Within (60) calendar days of the Agency's receipt of Complainant's compensatory damages evidence and attorney's fees statement, the Agency shall issue a final decision addressing the issues of attorney's fees, costs, compensatory damages, and back pay. The Agency shall submit a copy of the final decision to the Commission's Compliance Officer.
4. Within 120 (one hundred and twenty) days of the date of this decision, the Agency shall consider taking appropriate disciplinary action against the S1, S2, S3, S4, and S5. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
5. Within 120 (one hundred and twenty) days of the date of this decision, the Agency shall provide at least sixteen (16) hours of EEO training to all individuals who may be on interview panels or may be act as a selecting official within the Agency's Office of Academic Affiliations, with an emphasis on reprisal.
6. The Agency shall evaluate its selection process policies, including the use of information obtained through internet searches and social media. Within 180 (one hundred and eighty) days of the date of this decision the Agency shall submit a report to the compliance officer describing its policy and its use of information gathered outside of application materials in the selection process. The Agency shall analyze any areas where individuals involved in the selection process may unnecessarily obtain information about an applicant's prior protected EEO activities, and shall discuss the steps that it will take to minimize access to that information. The Agency shall also describe the steps that it will take to ensure that individuals involved in the selection process know that such information cannot be shared or used in the selection process. The Agency shall follow up with the Compliance Officer one year after submitting the report detailing the progress it has made in this area, and additional steps that it plans to take.
7. The Agency shall post the attached notice, as prescribed in the Posting Notice Order below.
The Agency shall provide a report of compliance with this order to the Commission's Compliance Office. Copies must also be sent to Complainant and his representative.
POSTING ORDER (G0914)
The Agency is ordered to post at its San Francisco facility and in its Office of Academic Affiliations in Washington, D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
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).
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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
08-06-2015
__________________
Date
1 The record reflects that the interview panel was comprised of employees from the Office of Academic Affiliations located in Washington, D.C.
2 See, for example, Coffee v. Army, EEOC Appeal No. 0120120117 (March 15, 2013) (The Commission found that a decision without a hearing was appropriate, however the AJ erred finding in favor of the Agency as the record established by a preponderance of the evidence that Complainant was subjected to reprisal for prior protected EEO activity); Mayer v. Dep't of Homeland Security, EEOC Appeal No. 0120071846 (May 15, 2009) (The Commission found that a decision without a hearing was appropriate, however the AJ erred in finding in favor of the Agency, as the record reflects that Complainant was subjected to sexual harassment and a hostile work environment).
3 S1's affidavit is in the form of a transcript that was transcribed by a Certified Shorthand Reporter, and S1 was sworn in under oath.
4 Complainant also alleged as proof of pretext that S1 made a racial comment 15 years prior to the non-selection at issue in this complaint. However we need not address the additional alleged bases of discrimination because it would not change the remedy. Complainant v. Department of Labor, EEOC Req. No. 0520120381 (June 25, 2015) (Having found the Agency did not select Complainant based on race, the Commission need not address Complainant's claim of age discrimination, as it would not change the relief ordered); Ness v. U.S. Postal Serv., EEOC Appeal No. 01981368 (Nov. 21, 2000) (having found discrimination based on disability, retaliation claim not addressed as the remedies available would not be augmented even with a finding of retaliation); Williams v. U.S. Postal Serv., EEOC Appeal No. 01944389 (Apr. 11, 1996) (other bases of discrimination not addressed where disability discrimination found).
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0120120184
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120184