Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Jun 7, 2013

0120122033 (E.E.O.C. Jun. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 0120122033 Hearing No. 100-2003-08442X Agency No. 8966598005 DECISION On April 12, 2012, Complainant filed an appeal from the Agency’s March 13, 2012, final order concerning her equal employment opportunity (EEO) class action 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. 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 Administrative Judge properly deny the Agency’s motion to decertify the class? Additionally, if the class continues to be certified, does the record support the Administrative Judge’s finding that the Agency violated Title VII? Finally, was the Administrative Judge’s recommended relief appropriate? BACKGROUND The Class Representative (CR), a Special Agent (SA), GS-13, with the Drug Enforcement Agency (DEA), filed a formal class complaint on March 17, 1993, alleging that the Agency discriminated against her and similarly situated females on the basis of sex (female) when the Agency denied female SAs foreign assignments and promotions to supervisory positions. Additionally, CR alleged that the Agency’s acts constituted a pattern and practice of unlawful discrimination against female SAs in selections for foreign assignments and promotions to Grades 14 and above. 0120122033 2 Selection Process for Foreign Special Agent Positions Between 1990 and 1992, the Agency maintained over 70 foreign offices in approximately 50 countries around the world. The office in charge of overseeing the Agency’s foreign offices was the Office of International Operations. Foreign assignments were highly sought-after, prestigious opportunities for SAs, and SAs assigned to foreign posts received significant financial benefits and improved chances for promotional opportunities. The Agency’s Deputy Administrator was the selecting official for all overseas SA positions. The Deputy Administrator acted on the recommendation of the Agency Career Board1 for GS- 14 and GS-15 positions. For positions below GS-14, the Deputy Director acted on the recommendation from the staff of the Office of International Operations, through the Assistant Administrator for Operations. SAs were required to apply for foreign assignments through their supervisory chain of command. The SAs’ Field Division then submitted applicants’ names to the Office of Personnel for consideration, and often included supervisors’ recommendations. After receiving the applications, the Office of Personnel would create a best qualified list (“BQL”), of the applicants who met the “standard criteria” of grade eligibility and time-in-grade. The Office of Personnel then forwarded the BQLs to the Office of International Operations. The selection criteria for foreign posts were universal, did not include a set of Knowledge, Skills, and Abilities, and contained only a generalized summary of the SA’s duties. The vacancy announcements for all foreign posts were identical except for the location, the vacancy announcement number, the language requirement (if any), and grade level eligibility. The Office of International Operations staff was assigned to review the applications and make selection recommendations. There were no standardized criteria for staff to follow in reviewing the applications. Evidence presented at the hearing revealed that some staff only reviewed the BQLs, while others reviewed a career bio sheet which was a summary of the applicant’s last promotion, the past three years performance ratings, prior assignments, education, and language fluency. The record established that some SAs were selected before being interviewed and others were selected without even submitting an application. The Office of International Operations staff was directed to ask all candidates (male and female) about their marital status, and if they were married, they were to conduct interviews of the spouses. Staff interrogated only female applicants about matters such as their childcare arrangements and whether their husbands could adjust to a role as an overseas spouse. 1 The DEA Career Board was chaired by the Deputy Administrator and was composed of DEA senior executives. During the relevant time period there were no women serving on the Career Board. 0120122033 3 The Office of International Operations staff created recommendation memorandums with the top choices for selection. The memorandum went to the Office of Personnel in Agency Headquarters if the position was for Grades 11-13. The memorandum went to the Career Board if the position was for Grades 14 and 15. The Career Board usually selected one of the Office of International Operations’ recommended candidates, and if the selection was not in line with those candidates, the selection was “contingent upon the Office of International Operations approval.” During the relevant time of this complaint, an EEO representative repeatedly brought the issue of underrepresentation of women in foreign office posts to the Career Board’s attention. Additionally, the Career Board was receiving quarterly EEO reports indicating that female selections were “not in balance.” Further, pursuant to a Congressional request, on August 5, 1992, the U.S. Government Accountability Office (“GAO”) conducted an audit of the Agency’s minority promotion statistics and concluded that the Career Board “fell short in the category of female …. promotions.”2 The Class Representative During 1990-1992, CR, a GS-13 in the Denver field office, submitted seventeen applications for foreign assignments. With only one exception, a male SA was selected for each and every one of those posts. The AJ found that CR was well qualified for a foreign assignment. She performed at the highest levels at the Denver field office, including acting as the case agent for a number of high profile cases. CR also had supervisory experience at the GS-14 level, and was consistently rated as “Excellent” and “Outstanding” in her 1991 and 1992 performance evaluations, which was often better than the evaluations of many male applicants. CR applied for one of three positions in Bangkok. The Office of International Operations selected three males instead. CR’s husband, a retired police officer, was ready and willing to move overseas if CR was selected for a foreign assignment. CR’s supervisors received two calls from the Office of International Operations, who had a concern about CR’s husband adjusting overseas despite being told that the husband was retired and willing to move overseas. Further, despite their concerns that CR’s husband would not be willing to follow CR overseas, they never contacted CR’s husband to ask him if he would be willing to move overseas. CR’s supervisor was told later by the Office of International Operations that she was not selected because she “did not know where Bangkok is located”. Hearing Transcript (HT) 2 Congress requested that GAO examine the Agency’s investigation and resolution of sexual harassment claims, as well as look at factors affecting the promotion and retention of women within the Agency. The GAO found numerous impediments to the Agency’s EEO program, especially as related to sexual harassment. Additionally, the GAO noted examples of male employees with less experience and seniority who were selected for promotions over qualified female employees, and the report noted that this class action was filed. 0120122033 4 at 981. However, CR stated that she was never asked about the geographical location and she knows the location of Bangkok. Subsequently, CR was considered for a position in Curacao. CR’s supervisor reached out to the Office of International Operations on her behalf, and the Section Chief of the Office of International Operations spent five minutes talking to the supervisor about CR’s qualifications and fifteen minutes talking about her husband’s willingness to follow her overseas. CR ultimately volunteered to serve a three week Temporary Duty Assignment (TDY) in Curacao to show the Agency that she could succeed overseas. At the end of the assignment, the Consul General of Curacao was impressed with CR and strongly recommended her for the permanent position. Complainant’s supervisor received a call from the Office of International Operations’ Section Chief who told him that despite the recommendations there was “still a problem with the husband.” HT at 1005 - 6. CR was never recommended by Office of International Operations for the position, and a male was selected instead. The selectee had five years less tenure and was a grade lower than CR, he had not previously worked in Curacao, and he did not have the recommendation of the Consul General. Further, the Office of International Operations never inquired about whether the selectee’s wife would be willing to follow him overseas. CR continued to apply for foreign positions and had recommendations from her supervisor, including several positions in: Sao Paolo; Athens; Frankfurt; London; Guatemala; Canberra; Copenhagen; Caracas; and Hong Kong. CR was repeatedly not selected for the positions, despite her extensive qualifications. In December 1992, a staff coordinator from the Office of International Operations asked her supervisor, “Is her husband really going to retire and follow her overseas?” HT at 1084. The Class According to the record, this class complaint involved approximately 64 class members. In addition to CR, twelve additional class members testified at the hearing and gave similar anecdotal accounts. Class member 1 (CM1), who at the time of the class worked in the San Diego Field Division, applied for and was denied at least four foreign assignments during the class period. To improve her chances of being selected, CM1 accepted a three month TDY to Tokyo and a subsequent TDY to the Hague. CM1 applied for permanent positions in both Tokyo and the Hague, as well as positions in the Caribbean and Australia. While processing her applications, CM1’s supervisors repeatedly told her not to get upset if she was not selected for Asian positions because they were “male dominated cultures” and the Agency did not select female SAs for those positions. HT at 240. The AJ found that CM1 had extensive experience as an expert in Asian trafficking, frequently went to Mexico for work, and she reached out to law enforcement in Australia by taking a trip at her own expense. Despite this, CM1 could not attain a permanent foreign assignment position within the Agency. Class member 2 (CM2), who at the time of the class was the only female who worked in the San Juan, Puerto Rico office, applied for and was denied at least five foreign assignments 0120122033 5 during the class period. One of her supervisors who was in a position to recommend her for foreign assignments told her that women should be home having babies and that women should not be SAs. HT at 1463. When CM2 became pregnant, the supervisor called her a “useless Agent.” Id. While CM2 was not interviewed for any of the positions she applied for, the Office of International Operations did recommend her as their second choice for a position in Mexico. The recommendation memorandum focused on CM2’s status as a single mother. Subsequently, CM2 was called about a position in Lima, Peru, and the staff member from the Office of International Operations asked her if she “knew what she was doing” in applying for Lima, and asked her “how could [she], a single mother, want to take [her] child to a country like that” and whether it was a suitable place for a “woman like [her]” to take a child. HT at 1436-37. CM2 stated that she was never questioned about her qualifications or her case work during the conversation. When CM2’s Assistant Special Agent in Charge (ASAC) learned of the conversation, he called the Office of International Operations to complain. As a result, CM2 was offered the Lima position. Class member 3 (CM3), who at the time of the class worked in the Miami Field Division, applied for and was denied at least four foreign positions during the class period. CM3 was most interested in Thailand and was interviewed in 1992 for a position in Bangkok. CM3’s supervisor was told by the interviewer that she did not know something about the altitude in Bangkok, and she was not selected for the position. HT at 1644. CM3 stated that she was never asked a question about the altitude in Bangkok. She spoke to two of her supervisors who had control over recommendations for her foreign assignment applications about her desire to go to Bangkok, and both responded that she should stop getting pregnant. HT at 1646. One supervisor stated “If you keep getting pregnant, I won’t be able to get you to Bangkok.” Id. Another supervisor told her that if she wanted to go to Bangkok she should put off having any more children, because the Agency did not want to send pregnant females overseas. HT at 1653. These same supervisors told CM3 that she could not be a backup supervisor because she was pregnant, asked her where to get abortions after she had two miscarriages, and after she returned from maternity leave one stated “you want my advice, stay home.” HT at 1663, 1648, and 1657. Class member 4 (CM4), who at the time of the class worked in the Los Angeles office, applied for and was not selected for at least seven foreign positions during the class period. She was told that women were considered “second-class citizens” in Asian and Muslim countries and the Agency would probably choose men for those positions. HT at 1239. Complainant had been on four TDY jungle tours with Operation Snowcap, an international operation directed towards reducing the production and availability of cocaine in the remote jungles of South America. CM4’s supervisor, who later became the Deputy Director of the Officer of International Operations, often discouraged her from joining Snowcap. HT at 1237. When she complained to her Snowcap supervisor that she was not getting as many assignments as her male counterparts, her supervisor responded that women did not belong in Snowcap or in law enforcement. HT at 1222-23. 0120122033 6 Class member 5 (CM5), who at the time of the class worked in the Miami office, applied for each and every foreign assignment in her grade “without exception.” She was never interviewed or selected for a foreign assignment. At least six of her applications were for Colombia because of her Spanish skills and because Colombian cartels were her specialty. When she told her supervisors about her desire to work overseas, one supervisor stated that although she was an excellent agent, “the best female agent was not equivalent to the worst male special agent.” HT at 1577-78. An ASAC told her in front of a group of male agents that the reason women worked in the Agency was to “f--k male agents” and “find a man to marry, have children, and live off the male’s income.” HT at 1578-79. Another ASAC told her that female agents did not deserve to be on the job, and that her true intention was to marry and retire. HT at 1580-81. Condoms were repeatedly left on her desk, vulgar comments were made on a continual basis, and people accused her of “f--king somebody to get a case.” HT at 1590-91. Class member 6 (CM6), who at the time of the class was stationed out of Quantico, Virginia, applied for nine foreign assignments during the class period. CM6 was not selected for any of these positions despite the fact that some of her supervisors highly recommended her and even made calls to the Office of International Operations on her behalf. CM6 worked as an instructor and travelled the world teaching foreign prosecutors, judges, and law enforcement about drug trafficking. When she was scheduled to train in Saudi Arabia, the Chief of International Training told her not to go because she would not be well received at the post as a female. HT at 1690. Additionally, for a training assignment in Korea, it was requested that a male agent be sent instead of CM6 because she would not be well received as a female. HT at 1691. CM6 ultimately conducted the training assignment in Korea, and the reception was fine. Class member 7 (CM7), who at the time of the class worked in the St. Louis Division Office and the Chicago Division Office, applied for and was denied at least four foreign assignments during the class period. CM7 applied for positions in Jamaica, Guatemala, Venezuela, and Nigeria. CM7 was particularly interested in Nigeria because she had much experience working on Nigerian heroin trafficking cases. CM7 stated that she experienced gender bias from the time she started basic training and was repeatedly asked about her marital status. HT at 1505. CM7 eventually abandoned her pursuit of a foreign assignment because only male SAs were being selected, and she observed that the Agency had a practice of not sending women to Central and South America, Muslim countries such as Nigeria, and “eastern offices.” HT at 1499-00, 1503-04. Class member 8 (CM8), who at the time of the class worked in the Denver office, applied for at least twenty foreign assignments during the class period. She was never interviewed or selected for any of the positions. One of the positions was in Lagos, but the only other applicant was selected, a male with less time on the job than her. CM8 stated that her supervisors made discriminatory comments about her marital status, and her supervisor asked her “how would your husband feel about going wherever?” HT at 823. CM8 had a Masters’ degree, had moved up the ranks quickly to a GS-13, and had prior experience as an Acting 0120122033 7 Group Supervisor. As a result, she believes the only reason she wasn’t selected was because of her gender. Class member 9 (CM9), who at the time of the class worked in the Miami office, applied for and was denied at least five European assignments during the class period. She was never interviewed or selected for these assignments. CM9 had experience conducting complex investigations and undercover operations, and had experience working overseas as she frequently traveled to foreign countries to work on her cases, including to Germany, Antigua, and Canada. CM9 observed that only males were being selected for the overseas positions, and after years of not being selected she eventually stopped applying. CM9 stated that the Agency’s culture was not in favor of females and derogatory towards females. HT at 1617. Class member 10 (CM10), who at the time of the class worked in the San Diego Field Division, applied for and was denied at least four foreign assignments during the class period. In 1990 one of her applications was for one of three positions in Bangkok. Males were selected for all three positions. When she spoke to her supervisors about her desire to go to Thailand, she was told that there were “no women there and probably wouldn’t be any women in the near future.” HT at 1331-32. Subsequently in 1992, both CM10 and her SA husband applied for another position in Bangkok. CM10’s name on the BQL had an asterisk and a notation that she was married to an SA. Her husband’s name also appeared on the BQL and had no notation. Her husband was called twice for an interview by the Office of International Operations, and CM10 never received any calls about the position. Class member 11 (CM11), who at the time of the class worked in the Los Angeles office, applied for and was denied at least five foreign assignments during the class period. The positions were in Europe, South America, Asia, and the Caribbean. CM11 stated that she wanted to go to Thailand, but was discouraged from going to or applying for countries in the Far East since women weren’t being selected for those positions because the men did not respect the women in those countries. HT at 1788. CM11 talked to many supervisors about her desire to go overseas during the class period. One supervisor asked her “what would your husband do [overseas]?” and “what about your daughter?” HT at 1783-84. Another supervisor asked her what her husband thought of her going abroad and what she would do with her daughter, and made it seem like it was hard for women to get an overseas assignment. HT at 1787. CM11 stated that male SAs who were interested in foreign assignments were not asked questions about what their wives thought of going overseas and questions about their children. HT at 1785. When CM11 spoke to overseas supervisors about her desire for a foreign position, they said her chances “would be slim for certain areas” and “most of the time women weren’t selected.” HT at 1796-1797. Class member 12 (CM12), who at the time of the class was located in the New York office and in Quantico, Virginia, applied for and was denied fourteen assignments during the class period. Two of her applications were for positions in Curacao. In 1992 she received a call from the administrative assistant in Curacao who asked her when she was coming to TDY. The administrative assistant told her that she had been on the BQL and that all males on the BQL 0120122033 8 had come to Curacao for a TDY. HT at 2211. CM12 was never contacted about going to Curacao to TDY. She also applied for three positions in Lagos. For one of those positions, she received a call from a manager in the Office of International Operations who said “we didn’t pick you… we figured you didn’t know what you were doing. Are you sure that’s what you wanted to do?” HT at 2215. After she applied for the third time her name appeared on one version of the BQL. However, she did not appear on the final version of the BQL and no explanation was provided by the Agency for the discrepancy. CM12 also applied for a position in Haiti, but was told that she wasn’t selected for the position because there was already another female in Haiti and they did not want two women running an office. HT at 2231-32. She stated that it was commonly said around the office that women couldn’t be sent overseas because women wouldn’t be accepted such as in “Mexico because of machismo, Islamabad, Thailand, [and] various offices in certain areas where [the Agency] felt as though women would not be accepted.” HT at 2234-35. She concluded that the Agency’s attitude about sending women overseas precluded her from getting a position overseas. Class Certification and the Hearing On October 1, 1998, the Commission issued a decision directing certification of a class composed of “those female Special Agents who were denied foreign assignments between 1990 and 1992.” v. Dep’t of Justice, EEOC Request No. 05960870 (Oct. 1, 1998), reversing in part EEOC Appeal Number 01941485 (Oct. 1, 1998). The Commission found that the Class Agent had never applied for a promotion to the GS-14 level during the period in question, and as a result this claim would not be included in the class certification. Id. The case was subsequently assigned to an EEOC Administrative Judge (AJ), who on May 31, 2005, issued an Order bifurcating the proceedings into two phases: Phase I would address the Agency’s class-wide liability and, separately, any individual damages for CR if the Agency was found to be liable for discrimination; Phase II would address damages for individual class members. The AJ limited the class to “female DEA Agents who sought and were denied foreign assignments between 1990 and 1992.” A nine day hearing was held between July 1, 2009, and July 22, 2009. The AJ issued a final decision on the merits, titled “Interim Decision”, on April 27, 2011, finding liability against the Agency.3 3 AJs often bifurcate the hearings process into liability and damages phases in order to save resources in the event of a finding of no discrimination. This decision reflects the finality of the liability portion of the hearings process, and orders the parties to provide documentation solely regarding damages. The AJ found that the class presented convincing statistical evidence that shows that female SAs at the GS-11, 12, and 13 levels who applied for foreign positions were disparately impacted by the Agency’s hiring practices, and the Agency failed to establish the existence of a business necessity for the hiring practices. The AJ also found that the class failed to establish that female SAs at the GS-14 and 15 levels were 0120122033 9 disparately impacted as there were no statistically significant disparities present with respect to these grades. Additionally, the AJ also found that the class established disparate treatment by a preponderance of the evidence by showing that the Agency purposefully and repeatedly treated female SAs who applied for overseas positions at the GS 11-15 levels less favorably than their male counterparts. The AJ also found that the class showed that the disparate treatment of female SAs was not isolated, inadvertent or irregular and that it was the Agency’s standard operating procedures in selecting SAs for foreign positions. Further, the AJ found that the Agency failed to provide an articulation as to why it did not select the qualified female SAs for foreign positions. The Class was ordered to file a brief that clearly specified the systemic and individual relief for CR, as well as a properly supported request for attorney’s fees. The Agency was ordered to file an opposition to the Class’s brief. On October 7, 2011, the Agency filed a Motion for Class Decertification, in which the Agency asserted that the AJ’s April 27, 2011 decision finding liability against the Agency is contrary to the recent Supreme Court Decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ____ , 131 S.Ct. 2541 (June 20, 2011).4 On January 12, 2012, the AJ issued an Order denying the Agency’s Motion for Class Decertification. Additionally, on January 12, 2012, the AJ issued a Report of Findings and Recommendations. This Report included the AJ’s previously issued finding of liability, and it included the recommended remedies to make CR whole. The AJ ordered the Agency to pay CR $125,000 for non pecuniary compensatory damages and $3,150.06 for pecuniary damages. The Agency was also ordered to pay CR the sum of $1,060,354.50 in attorney’s fees, pay CR’s original attorneys $20,000.00 for legal representation rendered between 1992-1993, pay CR the sum of $291,674.77 in costs, retroactively promote CR and provide her with back pay and benefits, provide EEO training for all named management officials, and to consider taking disciplinary action against management officials. The AJ also ordered the Agency to begin Phase II of the litigation after it issued its final decision, in which the Agency must notify all potential class members about the finding of the discrimination and the remedies available. CONTENTIONS ON APPEAL In support of the appeal, the Class asserts that the Commission’s decision to grant class certification was correct, and the AJ correctly denied the Agency’s Motion to Decertify the Class. The Class asserts that the AJ’s decision on the merits should be upheld as the findings of fact are supported by substantial evidence in the record. Further, the Class asserts that substantial evidence in the record supports the AJ’s determination of individual relief for CR. In opposition to the appeal, the Agency asserts that the AJ erred when she denied its Motion to Decertify the Class. Additionally, the Agency asserts that there is no persuasive evidence in the record supporting the AJ’s recommended finding of class wide disparate treatment liability in this case. Finally, the Agency asserts that the AJ erred in finding that the Class established 4 We note that at this time, a full citation to the Supreme Court’s decision is not available. 0120122033 10 disparate impact, because the evidence in the record does not support the finding that the selection process was strongly influenced by a widely held belief within DEA that female agents could not and should not be selected for foreign assignments. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). Agency’s Motion to Decertify the Class On appeal, the Agency asserts that the AJ erred when she denied its order to decertify the Class. The Agency stated that the Class should be decertified because of new standards for class certification set forth by the Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ____, 131 S.Ct. 2541 (June 20, 2011). A review of the record reveals that the AJ issued her final decision on the merits of the Agency’s liability in her April 27, 2011 decision, which was issued almost two months prior to the issuance of the Supreme Court’s decision in Wal-Mart. The Supreme Court has held that a Judge may modify a class certification order or dismiss the class complaint in light of a subsequent development. See General Telephone Co. v. Falcon, 457 U.S. 147, 160 (1982). The Court also held that a certification order may be altered or amended before the decision on the merits. Id. at fn. 16. As noted by the Agency in its brief, this language means that modifications and adjustments may be made to the class until a final decision on the merits is reached. Here, the AJ reached her final decision on the merits of the Agency’s liability on April 27, 2011. It was clear from the decision that the findings on the merits were final, and the only remaining issue was relief. The Supreme Court issued its decision almost two months after the AJ’s decision on the merits, and the Agency did not submit its Motion to Decertify the Class until October 7, 2011. As a result, we affirm the AJ’s denial of the Agency’s Motion to Decertify the Class. Disparate Impact 0120122033 11 Claims of disparate impact involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335 fn. 15 (1977). Proof of discriminatory motive is not required under a disparate- impact theory. Id. To establish a prima facie case of disparate impact, the Class must show that an Agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present “statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion”). Specifically, the Class must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id.; Obas v. Department of Justice, EEOC Appeal No. 01A04389 (May 16, 2002). The burden is on the Class to show that “the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern.” Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (August 31, 2000). If the Class establishes a prima facie case of disparate impact, the burden shifts to the Agency to provide a business justification for the challenged action. Huber v. Department of Transportation, EEOC Appeal No. 0120070399 (July 9, 2009) (citing Section 105 of the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991)). Pursuant to the Civil Rights Act of 1991, once a prima facie case is established, the Agency has the burden of proving that the challenged practice is job-related and consistent with business necessity. Id. If the Agency satisfies this burden, the Class may nevertheless prevail if they identify an alternative employment practice that would accomplish the same goal with a less adverse impact on their protected class. Id. Here, the Class established a prima facie case of disparate impact. The record supports the AJ’s conclusion that the Class identified the specific practice or practices challenged. Specifically, a selection process existed that was highly subjective and without clear guidelines. The record established that the Office of International Operations did not have adequate procedures to ensure that its staff conducted the selection process consistently and in accordance with EEO guidelines. For example, the Office of International Operations’ Section Chief of the Far East Desk testified that the selection screening process was “subjective no matter how you put it,” and that rules and regulations “change[d] depending on the circumstances.” HT at 742-43. Staff charged with selections reviewed different materials, and while some only reviewed the BQL, others reviewed the applicant list or a bio sheet. The interview process was also subjective, as evidenced by the testimony of the Office of International Operations’ Staff Coordinator, who stated that he selected who to interview by going “down the list, mostly just, I’ll try these.” HT at 892. The record establishes that during interviews only female applicants were asked about childcare issues, and in some cases only female applicants were asked about their spouses willingness to move overseas. Additionally, some male SAs were selected without being interviewed. Many female 0120122033 12 applicants who appeared on the BQL were never notified that they were on the BQL. Additionally, the recommendations by the applicants’ supervisors and the Office of International Operations’ inquiries to supervisors were very influential in the selection decisions. The record supports the AJ’s finding that supervisors who had the ability to make important recommendations for female SAs’ assignments to foreign positions often made discouraging remarks about their chances of being selected for an overseas post, and the record supported the assertion of the existence of a sexist culture within the Agency that influenced the foreign assignment process and the daily lives of female agents. For the second prong of the disparate impact prima facie analysis, both the Class and the Agency put forth expert witnesses who provided statistical analyses to support their positions. The Class’s expert concluded that there were statistically significant disparities in the number of foreign assignments given to male and female SAs during the relevant time period. The AJ’s decision contains a very thorough and detailed analysis of the expert’s methodology and conclusions, including tables and detailed explanations. In summation, the Class’s expert relied on an applicant flow data analysis in her report, and analyzed the data vacancy by vacancy to make a comparison of “who was being looked at when [each] decision was being made.” She compared the people actually applying for each vacancy to those actually selected for each vacancy. In total, the Class’s expert analyzed 286 selections. She used all available data, including vacancy announcements, Career Board minutes, applicant lists, best qualified lists, and selection logs to reconstruct each selection. She utilized the “Fisher’s Exact test”, and she aggregated the data using the “common odds ratio.” Because of the Agency’s different selection procedures for higher grade positions, the expert analyzed separately the selections for positions GS-13 and below, and from those for positions at GS-14 and GS-15. The Class’s expert concluded that during the class period of 1990-1992, female SAs were given foreign assignments at the GS 11, 12, and 13 levels less often than their male counterparts and that this disparity is statistically significant at 2.42 standard deviations. The Class’s expert explained that social scientists generally agree that results that exceed 1.96 standard deviations from the expected are considered “statistically significant” in that they are unlikely to have occurred by chance. The Class’s expert also concluded that there were no statistically significant disparities present for female SAs at the GS-14 and 15 levels. Below is a table of some of the Class’s expert’s conclusions:5 Extract From Class’s Expert’s Table S-1 Analysis of Selections for Foreign Postings Based on Best Qualified Lists for Vacancy Announcements with Female Applicants 1988-1994 Grades 11, 12, and 13 Years Number of Selections % Female Available Predicted Number of Actual Number of Difference Number of Standard Statistically Significant? 5 For more detailed tables from both the Class’s expert and the Agency’s expert, see the AJ’s decision. 0120122033 13 Female Selections Female Selections Deviations (Standard Deviation More Than 1.96?) 1988- 1994 228 12.1% 27.7 18 -9.7 -2.03 Yes 1988- 1992 170 13.0% 22.1 13 -9.1 -2.18 Yes 1990- 1992 120 12.8% 15.4 7 -8.4 -2.42 Yes In contrast, the Agency’s expert concluded that there were no statistically significant disparities between the selection of female and male SAs for foreign assignments. Again, the AJ’s decision contains a very thorough and detailed analysis of the expert’s methodology and conclusions, including tables and detailed explanations. In summation, the Agency’s expert analyzed each selection for Grades 11-15 for which there was: 1) a vacancy announcement, 2) a best qualified list, 3) at least one female SA on the best qualified list, 4) a list of all applicants, and 5) a selection. Of the 387 vacancies during the relevant period, the Agency expert identified 202 vacancies as fitting all five criteria. The Agency’s expert used “the Four- Fifths rule” and conducted a “two-tailed Chi-Square” analysis of a 2 x 2 contingency table. She also conducted the “Fisher’s Exact test” analysis. The Agency’s expert counted the number of female agents who appeared on BQLs, counted the number who were selected and contrasted the number with those of male agents. She conducted a combined analysis for 1998 through 1994. The Agency’s expert concluded that women earned promotion through foreign assignments at a statistically significant higher level than men, at a rate of 22.73% for females and 5.28% for males. She also concluded through calculating a straight mean and then performing an analysis of variance that there was no statistically significant difference between male and female SAs in the average number of applicants and average number of appearances on the best qualified list. The Supreme Court has held that there is no fixed statistical or numerical value for establishing a prima facie case of disparate impact. See Hazelwood School District v. United States, 433 U.S. 299 (1977). Furthermore, statistical evidence must be analyzed in light of the facts and circumstances surrounding each individual case. Id. The Supreme Court has stated that statistical analysis using applicant flow data is a “very relevant” statistical model in discrimination cases involving promotion and hiring. Id. The analysis requires a comparison of the composition of persons who applied for a position with the identity of persons who hold the at issue jobs. Herron, et. al. v. U.S. Dep’t of Agriculture, EEOC Appeal No. 01A04725 (Sep. 27, 2002) citing Bullington v. United Airlines, 186 F.3d 1301 (10th Cir. 1999). In cases involving hiring and promotion, an analysis of applicant flow data is “the most direct route” to proof of discrimination. Herron, et. al, supra, citing EEOC v. Olson's Dairy Queens, 989 F.2d 165, 169 (5th Cir. 1993); Mister v. Illinois Central Gulf Railroad Co., 832 F.2d 1427, 1435 (7th Cir. 1987) (Applicant studies are preferable as a rule because Title VII governs the treatment of applicants). Such data has probative force because it reflects how the employer's 0120122033 14 hiring procedures actually operated as well as the actual percentage of (in this case, female vs. male) applicants for the positions in question. Bullington, supra at 1313. Here, the practice challenged in this class action is the entire selection process for foreign assignments. As a result, we agree with the AJ’s conclusion that the standard deviation analysis used by the Class’s expert is the proper analysis in this case, comprising of the composition of the employees promoted and the applicant pool, which includes the number of potential candidates for promotion. See Herron, et. al., supra. We agree with the AJ that the Class’s expert’s report was more credible and reliable than the Agency’s expert. The Agency’s expert did not conduct an applicant flow data in her analysis, and instead used a unified selection rate analysis. We agree with the AJ’s determination that the Agency’s expert’s conclusions are unreliable because her analysis does not consider the different variables concerning the number of females versus males who applied for each vacancy announcement. The Agency’s expert’s analysis does not look at each year separately, but yields results based on a combined analysis from 1998 to 1994. The Agency’s expert’s analysis considers all GS levels 11-15 jointly, despite a different selection processes for GS levels 13 and below and GS levels 14-15. The Agency’s expert’s analysis considered only 202 selections, while the Class’s expert’s analysis considered 286. The Class showed that the Agency’s expert failed to consider a number of vacancies that met her criteria for inclusion, and the exclusion of those vacancies remained unexplained. Additionally, the Agency’s expert improperly included vacancies in her analysis that were not foreign and were actually considered domestic, such as vacancies in Puerto Rico, the U.S. Virgin Islands, and Guam. Further, where multiple selections were made under the same vacancy announcement, the Agency’s expert counted the selections as separate vacancy announcements. The AJ found that the Class’s expert’s decision to aggregate the data for each vacancy announcement as part of the applicant flow analysis preserved the variations contained in each vacancy announcement and provided a more reliable means of determining whether there is a pattern of discrimination. The Class’s expert established there was a pattern of females being non-selected for foreign positions at the GS 11, 12, and 13 levels. As a result, we find that the Class established the second and third prongs of the prima facie analysis for disparate impact. Having found that the Class established a prima facie case of disparate impact, the Agency now has the burden of proving that the challenged practice is job-related and consistent with business necessity. Huber v. Department of Transportation, EEOC Appeal No. 0120070399 (July 9, 2009) (citing Section 105 of the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991)). The Commission has held that “[p]roof of business necessity includes a showing that no acceptable policies or practices are available which would serve the employer’s interests without such disproportionate impact upon a particular group.” Stiles v. Dep’t of Transportation, EEOC Appeal No. 01945728 (Dec. 12, 1996). After a review of the entire record, we agree with the AJ that the Agency failed to present a business necessity argument. 0120122033 15 As a result, we find that the Class established that female SAs at the GS-11, 12, and 13 levels who applied for foreign positions were disparately impacted by the Agency’s hiring practices. Additionally, as we noted earlier, the Class’s expert also concluded that there were no statistically significant disparities present for female SAs at the GS-14 and 15 levels. Therefore, we find that the Class did not establish that female SAs were disparately impacted for selection to foreign assignments at the GS 14 and 15 levels. Disparate Treatment The AJ found that CR established disparate treatment individually, and the class established disparate treatment as a whole when they were not selected for foreign posts at GS levels 11- 15.6 The Agency does not dispute that the Class Representative was subjected to disparate treatment. Specifically, in its final decision, the Agency stated, “Inasmuch as the record showed that complainant’s qualifications for the Curacao position were superior to those of the selectee, and that [the Agency] provided nothing to effectively rebut this, the Administrative Judge’s finding of liability on complainant’s individual claim is supported and will be accepted.” As a result, we affirm the AJ’s finding that CR established her individual case of disparate treatment. However, the Agency found that because the Class should be decertified, there is no basis to support the finding that the Class was subjected to disparate treatment. Since we found above that the Class should not be decertified, we will analyze the Class’s claim of disparate treatment. To establish a class complaint of disparate treatment, the Class bears the initial burden of making out a prima facie case of discrimination. International Brotherhood of Teamsters, supra at 336. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For the Class to prevail, they must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment actions. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Because the class action complaint, due to its very nature, alleges a concerted effort on the part of the Agency to discriminate systemically against a certain group of persons, the factual allegations for a prima facie case of disparate treatment in class actions are significantly greater than those required in an individual complaint. Specifically, the Supreme Court has noted that to establish a prima facie case of disparate treatment, the Class is required to do more than 6 The AJ noted that although the statistical evidence does not show a clear statistically significant disparity concerning female SAs seeking promotions to foreign posts at the GS-14 and GS-15 level, the class produced circumstantial evidence that supports a finding of disparate treatment with respect to these grade levels. 0120122033 16 simply adduce evidence of isolated or sporadic acts of discrimination against individual class members. Teamsters, supra at 336. Instead, the Class must show by a preponderance of the evidence that the Agency regularly and purposefully treated protected class members less favorably than the majority group members. Id. at 335. Evidence can take the form of statistics alone or a combination of statistics and anecdotal evidence. Id. at 339. Reliable evidence of gross statistical disparities, standing alone, can constitute prima facie evidence of discrimination. Id. Once the Class establishes a prima facie case of disparate treatment, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Class 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). After a review of the entire record, we find that the Class has established by a preponderance of the evidence that the Agency regularly and purposefully treated female SAs less favorably than male SAs. As stated earlier, we agree with the AJ that the statistical evidence shows that there was a pattern of females being non-selected for foreign positions at the GS 11, 12, and 13 levels. The statistics provided by the Class’s expert show that between 1988 and 1994, and most importantly during the class period of 1990-1992, there was a clear trend where male SAs were more successful at obtaining foreign positions than female SAs at the GS-11, 12, and 13 levels. These statistics are supported by the substantial anecdotal evidence in the record of the 13 class members who testified at the hearing. The record reflects the widespread belief amongst Agency managers and the staff of the Office of International Operations that females would not be as effective as males in countries considered by the Agency to be hostile to women. This conclusion is supported by statements from individuals directly involved in the selection process for foreign positions. For example, CR’s manager, who also served as the Chief of the Southeast Asia Section in the Office of International Operations during the class period, and later as the Deputy Chief of International Relations, made very revealing statements during the hearing. When he was asked whether sex was a factor considered in the selections to overseas positions, specifically in countries that may be perceived as male dominated, he stated: “I think it could have been considered, yes, to be honest with you. You’re asking me an honest question. I’m giving you an honest answer.” And “I think if you were going to send a person to a country that beheads people and everything else for being a woman for trying to interact and things of that nature, I think I would take that into consideration and say, ‘You know what? I think we probably don’t need to send a woman here.’” 0120122033 17 HT at 746-47. Similarly, the Staff Coordinator in the European Section from 1990 to 1993, who was subsequently promoted as Chief of the Far East Operations Section in the Office of International Operations, gave similarly revealing testimony. When he was asked whether “in [his] opinion, when [he was] in [the Office of International Operations], either in the Far East section or European section, would female agents have been able to operate to the same extent as male agents did in those particular countries….?”, the Staff Coordinator responded, “No,” and “in my opinion, they would not have been accepted as counterparts by the host country authorities.” HT at 2314-15. The Staff Coordinator also testified that placing a female SA in “a two-man office in Songkhla in Southern Thailand,7 which is the Muslim area of Thailand… that would not be a productive place to put a female agent.” HT at 2348. The Staff Coordinator also stated that a particular female was not selected for a position in Athens, Greece, because his “basic concern was I thought at that time putting a female agent in a place like Athens was not going to be productive for the employee and it was that simple.” HT at 2345-47. Additionally, the Office of International Operations’ Deputy stated at the hearing that he “did have a concern in some of the Muslim countries as to whether female agents would be able to work in the host country counterparts.” HT at 2887. We agree with the AJ that these statements, made by individuals directly involved with the selection process for foreign assignments, are indicative of bias towards women being assigned to cultures considered by the Agency to be male dominated. Substantial anecdotal evidence in the record reflects that this bias against female SAs in foreign positions is widespread in the Agency. For example, CM1 testified that her supervisors repeatedly told her not to get upset if she was not selected for Asian positions because they were “male dominated cultures” and the Agency did not select female SAs for those positions. HT at 240-41. Similarly, CM4 testified that she was told that women were considered “second-class citizens” in Asian and Muslim countries and the Agency would probably chose men for those positions. HT at 1239. CM6 testified that when she was scheduled to train in Saudi Arabia, the Chief of International Training told her not to go because she would not be well received at the post as a female. HT at 1690. Additionally, for a training assignment in Korea, it was requested that a male agent be sent instead of CM6 because she would not be well received as a female. HT at 1691. CM10 testified that when she spoke to her supervisors about her desire to go to Thailand, she was told that there were “no women there and probably wouldn’t be any women in the near future.” HT at 1331. CM11 testified that she was discouraged from going to or applying for countries in the Far East since women were not selected for those positions because men did not respect the women in those countries. HT at 1788. 7 The AJ noted that during the class period, there were no female SAs selected to work at the Asian posts such as Thailand, Burma, or Malaysia. 0120122033 18 The record also reflects a widespread practice that female SA applicants were frequently asked questions about childcare and pregnancies that were not similarly asked of male applicants.8 For example, CM2 testified that one of her supervisors who was in a position to recommend her for foreign assignments told her that women should be home having babies and that women should not be SAs. HT at 1463. When CM2 became pregnant, the supervisor called her a “useless Agent.” Id. When CM2 was recommended as the second choice for a position in Mexico, the Office of International Operations’ recommendation memorandum focused on CM2’s status as a single mother. Subsequently, CM2 was called about a position in Lima, Peru, and a staff member from the Office of International Operations asked her if she “knew what she was doing” in applying for Lima, and asked her “how could [she], a single mother, want to take [her] child to a country like that” and whether it was a suitable place for a “woman like [her]” to take a child. HT at 1436-37. Similarly, CM3 testified that two of her supervisors who had control over recommendations for her foreign assignment applications told her that if she wanted a foreign assignment to Bangkok she should stop getting pregnant. One supervisor stated to CM3 “If you keep getting pregnant, I won’t be able to get you to Bangkok.” HT at 1646. Another supervisor told CM3 that if she wanted to go to Bangkok she should not have any more children, because the Agency did not want to send pregnant females overseas. HT at 1653. CM11 was asked by two supervisors about what she would do with her daughter if she went overseas. HT at 1787. There is no evidence in the record that male applicants were asked these questions or subjected to similar derogatory comments. The record also reflects a stereotypically biased view within the Agency that husbands would not be willing to follow their SA wives to foreign positions. For example, CR testified that the staff in the Office of International Operations focused more on her husband following her overseas than on her experience and qualifications. The record reveals that CR’s husband, a retired police officer, was ready and willing to move overseas if CR was selected for a foreign assignment. Despite knowing this, the staff of the Office of International Operations repeatedly denied her positions based on their disbelief that her husband would follow her overseas, and stated to CR’s supervisor “Is her husband really going to retire and follow her overseas?” HT at 1084. It is significant to note the male SA who was selected for one of the positions CR applied for was not asked whether his wife was willing to move. CM8 similarly testified that her supervisors made discriminatory comments about her marital status, and her supervisor asked her “how would your husband feel about going wherever?” HT at 823. CM11 similarly testified that a supervisor asked her “what would your husband do [overseas]?” HT at 1783. Another supervisor asked her what her husband thought of her 8 In Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, Section II(A)(1), (2007), the Commission noted that relevant evidence in allegations of disparate treatment of female caregivers may include, but is not limited to: whether the respondent asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities; and whether decision makers or other officials made stereotypical or derogatory comments about pregnant workers or about working mothers or other female caregivers. 0120122033 19 going abroad and what she would do with her daughter. HT at 1787. The AJ correctly noted that while the above questions are not clear violations of Title VII, they become illicit when they are used to treat females differently than men.9 The testimony provided by the class members also support the AJ’s finding that although many qualified females applied for overseas positions, males were routinely selected over equally or better qualified female applicants. For example, the AJ found CR was well qualified for a foreign assignment. She performed at the highest levels in the Denver office, was designated as the case agent for high profile cases, received commendations for her work on important cases, had supervisory experience at the GS-14 level, and was rated “Excellent” and “Outstanding” on her performance evaluations. For one position in particular that CR was extremely qualified for, she had performed in the position during a TDY and had the high recommendation of the location’s Consul General. The male selectee for the position had five years less tenure than CR, was a grade lower than CR, had not worked in that location previously, and did not have the recommendation of the Consul General. Despite CR’s extensive qualifications, male SAs were selected for all but one of the seventeen positions CR applied for during the class period. Evidence in the record reflects that class members Agency wide had experiences similar to CR. For example, CM1 had TDYs in both Tokyo and the Hague, was an expert in Asian trafficking, went to Mexico frequently for work, and went to Australia out of her own pocket to work with law enforcement. Despite her experience, a less qualified male was selected for a permanent assignment in both Tokyo and the Hague. CM5 had specialty experience in Colombian cartels and was extremely fluent in Spanish, and when she told her supervisors about her desire to work overseas, one supervisor stated that even though she was an excellent agent, “the best female agent was not equivalent to the worst male agent.” HT at 1578. Despite her specialty expertise, CM5 was not selected for a position in Colombia. CM6 was not selected for any foreign positions even though she was extremely qualified, her supervisor “highly recommended” her, and some of her supervisors made calls to the Office of International Operations on her behalf. CM7 was not selected for assignments in Nigeria, even though she was very experienced in Nigerian heroin trafficking cases. CM8 had a Masters Degree, was promoted to a GS-13 position relatively fast because of her exceptional performance, and had supervisory experience. She applied for a position in Lagos that she was extremely qualified for, however a male with less time on the job was selected for the position. CM9 had extensive experience travelling to European countries to work on her cases, and despite this, males were selected for the permanent European posts she applied for. The record also reflects that staff from the Office of International Operations often made false or unsubstantiated claims for why female SAs were not selected for foreign assignments. For example, CR was told that she was not selected for a position in Bangkok because she did not 9 While the Agency stated that these questions were asked because of tour curtailments (where an Agent or his/her family could not adjust to life overseas and had to be moved back to a domestic position), the record reflects that tour curtailments were infrequent. 0120122033 20 know the geographical location of Bangkok. HT at 981. CR stated that she was never asked about the geographical location of Bangkok. Additionally, CM3 testified that she was told she did not get a foreign assignment in Bangkok because she did not “know something about the altitude of Bangkok,” even though she was never asked about Bangkok’s altitude. HT at 1644. CM12 was told by a manager in the Office of International Operations that she was not selected for a position in Nigeria because they “figured she didn’t know what she was doing.” HT at 2215. Further, the record supports the AJ’s finding that the Agency was aware of the lack of representation of female SAs in foreign assignments. The Career Board, which made the selections for GS-14 and GS-15 assignments, was routinely informed by EEO representatives about the demographics (including race and gender) of the prospective applicants for the vacant foreign post positions, and was therefore aware of which applicants were male and female. Additionally, the minutes from the Career Board meetings contained marking indicating the gender of the applicants (or “minority coding” as referred to by the Class), although it was unclear who made the markings and it was therefore deemed inconclusive by the AJ. The Career Board was aware that female SAs were underrepresented in foreign positions and received quarterly reports on minority and female representation at the meetings. Additionally, on August 5, 1992, the U.S. Government Accountability Office (“GAO”) conducted an audit of the Agency’s minority promotion statistics and concluded that the Career Board “fell short in the category of female …. promotions.” The record reveals that the minutes from a Career Board meeting in August 1992 reflected the Board’s knowledge of the GAO’s audit and conclusions that there was an underrepresentation of female SAs promoted to the GS-14 and GS-15 positions. Substantial evidence in the record supports the AJ’s finding that the Class established a prima facie case of disparate treatment, as a preponderance of the evidence in the record establishes that the Agency regularly and purposefully treated female SAs less favorably than male SAs in the selection for foreign assignments at GS levels 11-15. The AJ correctly found that the Class showed that disparate treatment of female SAs was not isolated, inadvertent or irregular, and that it was the Agency’s standard operating procedure in selecting SAs for foreign positions. Further, there is no evidence in the record that would establish that the Agency provided an articulation as to why it did not select qualified female SAs for foreign positions. Additionally, the Agency did not provide an explanation for why it only interrogated female applicants about matters such as their childcare arrangements and pregnancies, and why it focused more heavily on whether female applicants’ husbands could adjust to a role as an overseas spouse. As a result, we find that the Class established that it was subjected to disparate treatment. Individual Relief for CR The AJ awarded CR $125,000 for non-pecuniary compensatory damages, and $3,150.06 for pecuniary damages. The Agency was also ordered to pay CR the sum of $1,060,354.50 in attorney’s fees, pay CR’s original attorneys $20,000.00 for legal representation rendered 0120122033 21 between 1992-1993, and pay CR the sum of $291,674.77 in costs. The AJ also ordered that CR be provided a retroactive promotion for her non-selections, with back pay and any applicable benefits associated with the overseas positions. Further, the AJ ordered training and that the Agency consider taking disciplinary action against the named responsible management officials. In its final decision, the Agency reduced the non-pecuniary compensatory damages awarded to CR to $15,000. It also rejected the AJ’s attorney’s fees award, and ordered CR to submit another attorney fee petition. The Agency also found that mandatory training is unnecessary because the discrimination occurred more than 20 years ago. Additionally, the Agency did not address at all whether it would consider taking disciplinary action against the responsible management officials. 1. Non-Pecuniary Compensatory Damages The AJ awarded CR $125,000 for non-pecuniary compensatory damages. In a claim for compensatory damages, a Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep’t of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice at 11-12, 14; Carpenter v. Dep’t of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from the Complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as “Notice”); Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter, supra. Additionally, the amount of the award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. United States Postal Service, EEOC Appeal No. 01972555 (April 15, 1999), citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989). Finally, we note that in determining non-pecuniary compensatory damages, the Commission has also taken into consideration the nature of the Agency’s discriminatory actions. See Utt v. United States Postal Service, EEOC Appeal No. 0720070001 (March 26, 2009); Brown-Fleming v. Dep’t of Justice, EEOC Appeal No. 0120082667 (October 28, 2010). After a review of the entire record, we find that substantial evidence in the record supports the AJ’s finding that CR is entitled to compensatory damages for emotional distress and other non- pecuniary harm. CR established that she was repeatedly subjected to discrimination in foreign assignment opportunities from 1990 to 1992. CR stated that after the repeated non-selections, 0120122033 22 her emotional distress manifested in anger, frustration, sadness, anxiousness, humiliation, and embarrassment. Submission in Support of Class Agent Ann Garcia’s Claim for Individual Relief (IR) at 2. CR stated that she changed for the worse, turned inward, and cut herself off from her coworkers, friends, and family. IR at 13-18. CR stated that she had depression and referred to it as “a form of hell on earth.” IR at 2. She described a “psychological melt- down” beginning in 1992, where she was at the “bottom, the depths of depression.” Id. She stated that the discrimination she encountered undermined her professional accomplishments and produced deep wounds in her life. Id. She stated that she was unable to think of anything else, and her relationships with family and friends suffered. Id. CR also suffered from physical manifestations as a result of the discrimination. CR stated that beginning in 1992 she began to suffer from severe gastro-intestinal problems. IR at 4. Despite medical procedures in 1995 and 2000, CR continued to suffer from these problems. Id. at 6. CR stated that even after her retirement in 2008, she would have severe stomach episodes whenever she was confronted with strong reminders of the discrimination. Id. CR also suffered from lack of sleep, fatigue, migraines, and frequent crying. Id. at 7, 21. Further, CR experienced hair loss, which caused her a great deal of embarrassment and self-consciousness in her appearance. Id. at 8. One of CR’s coworkers testified that she noticed a dramatic change in CR after the discrimination, and CR’s focus on the discrimination took over her personality. IR, Exhibit 4. She stated that CR’s body language, facial expressions, and tone of voice all manifested her anger, frustration, bitterness, and confusion. Id. She stated that CR appeared very sad, disheartened, and depressed. Id. Another coworker testified that after the discrimination CR was no longer fun to be around, and all she would talk about was her work problems. IR, Exhibit 5. She stated that CR was no longer enthusiastic or happy. Id. CR’s mother testified that CR had an obvious change in personality after the discrimination, and she was very anxious, frustrated, worried, and happy. IR, Exhibit 3. She said that the happy person CR used to be went away. Id. CR’s husband stated that at home CR would only talk about her situation at work and the ongoing effects of the discrimination. IR, Exhibit 2. He stated that CR was obsessed with her problems at work and it was making her absolutely miserable. Id. He stated that the discrimination was particularly damaging on their marriage, and their interactions were one sided and always about her work problems. Id. CR’s husband stated that because of these issues, they were on the brink of formal separation many times. Id. Additionally, the record reveals that CR endured pain, suffering, anxiety and depression for more than nineteen years. Specifically, CR stated that her condition only improved when she retired in May 2008, and even after retirement she has the same awful feelings when she is reminded of the discrimination. IR at 3. The record also reflects that CR continued to have physical manifestations when reminded of the discrimination in the form of severe stomach episodes even after her retirement in 2008. The record does not support the Agency’s assertion 0120122033 23 that the non-pecuniary damages should be limited to the class period of 1990-1992, as the record establishes that the harm Complainant suffered as a result of the discrimination lasted at least until the time of the hearing. See Fonda-Wall v. Dep’t of Justice, EEOC Appeal Number 0720060035 (July 28, 2009) (Complainant established that her harm continued even after the harassment stopped, and the long term and continuing impact of the Agency’s actions were evident during the hearing). After careful consideration of the evidence of record, we find an award of $150,000 for non- pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See See Coopwood v. Dep’t of Transportation, EEOC Appeal No. 0120083127 (May 2, 2012) (The Commission awarded $150,000 in non-pecuniary compensatory damages where over several years the discrimination caused Complainant emotional and physical pain including depression, difficulty concentrating, insomnia, loss of enjoyment of life, withdrawal from relationships, weight fluctuations, and stomach problems); Lopez-Rosende v. U.S. Postal Service, EEOC Appeal no. 0120102789 (Nov. 30, 2010) (The Commission awarded $150,000 in non-pecuniary compensatory damages where discrimination caused Complainant emotional and physical pain for more than seven years including depression, chest pains, difficultly sleeping, and withdrawn relationships from her children, friends, and romantic partners); Brown-Fleming v. Dep’t of Justice, EEOC Appeal No. 0120082667 (Oct. 28, 2010) (The Commission awarded $150,000 in non-pecuniary compensatory damages where discrimination caused Complainant emotional and physical pain including depression, anxiety, social isolation, withdrawal from relationships, damage to professional reputation, nightmares, worsening abdominal pain, and weight loss). Accordingly, we conclude that an award of $150,000 will adequately compensate CR for the physical and emotional harm she suffered as a result of the agency’s discrimination. 2. Pecuniary Compensatory Damages Compensatory damages may be awarded for pecuniary losses that are directly or proximately caused by the Agency's discriminatory conduct. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 8. Pecuniary losses are out-of-pocket expenses incurred as a result of the Agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Id. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. The AJ found that CR was entitled to $3,150.06 for pecuniary damages. CR had originally requested $3,713.32, which included $463.26 for a laptop computer she purchased to assist her attorneys and prepare for the hearing. The AJ correctly found that the laptop computer is a consumer product that does not have a use exclusively limited to the hearing process. 0120122033 24 Additionally, the AJ properly reduced $100 for meals that exceed the reasonable subsistence costs under the federal travel regulations. We find that substantial evidence in the record supports the AJ’s award of $3,150.06 for pecuniary damages. 3. Attorney’s Fees CR requested $1,318,460.00 in attorney’s fees. Attorney's fees are ordinarily computed by determining the lodestar, i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. 29 C.F.R. § 1614.501(e)(2)(ii)(B) (explaining that this is the starting point for computing attorney's fees). There is a strong presumption that this amount represents the reasonable fee, though in limited circumstances, this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency, Id. Further, a reasonable fee award may be assessed in light of factors such as: (1) the time required (versus time expended) to complete the legal work; (2) novelty or difficulty of the issues; (3) the requisite skill to properly handle the case; (4) the degree to which counsel is precluded from taking other cases; (5) the relief sought and results obtained; and (6) the nature and length of the attorney-client relationship. See Cerny v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994). Complainant is only entitled to an award for time reasonably expended. It does not always follow that the amount of time actually expended is the amount of time reasonably expended. Elvin v. Department of Labor, EEOC Request No. 01943425 (August 31, 1995). Rather, “billing judgment” is an important component in fee setting, and hours that would not be properly billed to a private client are also not properly billed to the agency pursuant to a successful EEO claim. Id. Counsel for the prevailing party should make a “good faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary.” See Bernard v. Dep’t of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Substantial evidence in the record supports the AJ’s determination that considering the complexity of the case, the amount of motions that were filed, and the large amount of data that was reviewed, the hours charged by counsel were not excessive or duplicative. Further, the record supports the AJ’s finding that even though the class’s counsels’ rates fell outside of the Laffey Matrix, a fee enhancement was warranted. The AJ found that the underlying class complaint involved highly complex class-related litigation, the class’s counsel has shown that their rates are consistent with the community rates for work performed in similar cases, the present matter was litigated for many years, and that the counsel achieved exceptional success in the outcome of the litigation. The AJ found that based on the Laffey Matrix, class counsel should be awarded a total of $883,628.75. The AJ applied a 20% fee enhancement, bringing the total attorney’s fees to $1,060,354.50. The Agency asserts that there is no legal basis for an enhancement of attorney’s fee award by 20%. We note that EEOC Regulations provided that in limited circumstances the “lodestar” amount may be “increased in consideration of the degree of success, quality of representation, 0120122033 25 and long delay caused by the agency.” 29 C.F.R. § 1614.501(e)(2)(ii)(B); EEOC Management Directive 110, Ch. 11(VI)(B)(1) (Nov. 9, 1999). The Commission has previously enhanced attorney’s fee awards where an attorney achieves “exceptional success.” See Turton v. Dep’t of Interior, EEOC Appeal Number 07A50040 (Sep. 28, 2005) (The Commission found an AJ did not abuse his discretion in awarding the 20% attorney’s fees enhancement where Complainant had a high degree of success); Kann v. Dep’t of Interior, EEOC Appeal Number 07A50039 (Sep. 28, 2005). As a result, we affirm that AJ’s determination that CR is entitled to $1,060,354.50 in attorney’s fees. Additionally, CR requested $52,500.00 as compensation for legal services rendered in 1992- 1993 for her former counsel. The AJ found that while CR was not the prevailing party at the time the former counsel represented her, the attorneys were nevertheless involved in the appeal that ultimately resulted in the re-certification of the class in the case of v. Dep’t of Justice, EEOC Request No. 05960870 (Oct. 1, 1998). The record is not clear as to how the work was allocated on an hourly basis, and as a result we find that the AJ properly reduced CR’s requested attorney’s fees for former counsel to $20,000.00. In total, CR is entitled to $1,080,354.50 in attorney’s fees. 4. Costs CR requested $360,755.07 for expert fees. A prevailing complainant is entitled to recovery of her costs in prosecuting the claims on which she prevailed. Hudson v. U.S. Postal Service, EEOC Appeal Number 0120120891 (May 9, 2012). These include copying, postage, travel expenses, and so forth. 29 C.F.R. § 1614.501(e)(2)(ii)(C). Reasonable costs incurred directly by the prevailing complainant are compensable. Costs must be proved in the same manner as fees, and the complainant must provide documentation, such as bills or receipts. See EEOC Management Bulletin 110 (EEO MD-110), Chapter 11, Section V, pages 11-4 & 11-5 (Nov. 9, 1999). The AJ reduced CR’s request for expert fees by 25%, finding that the expert researched issues that the Commission had previously determined were not part of the certified class. Additionally, the expert had to familiarize herself with the National Finance Center database of federal payroll records, and her unfamiliarity with the subject resulted in errors that caused her to spend additional time on her tasks. After a review of the record, we find that substantial evidence in the record supports the AJ’s award of $270,566.31 for expert fees. The AJ also reduced CR’s request for $11,297.60 for “duplicating” 56,488 pages of unidentified documents. Substantial evidence in the record supports the AJ’s determination that there is insufficient information to determine the relevancy of the documents, and a reduction of 50% to $5,648.80 is appropriate. The Agency did not dispute the remaining miscellaneous costs requested by CR. We affirm the AJ’s determination that CR is due the sum of $291,674.77 in costs. 0120122033 26 5. Back Pay and Promotion The AJ found that CR is “entitled to full ‘make whole’ relief, including back pay with interest and a retroactive promotion (if applicable, depending on the specific position).” The Agency found that the AJ failed to identify what promotion CR was entitled to, and as a result it dismissed this relief in its final decision. We hereby clarify that Complainant shall be retroactively assigned to the position in Curacao for which she applied and ultimately was not selected. Additionally, we note that CR is entitled to back pay associated with the promotion up to the date of her retirement in 2008. The back pay shall include interest and benefits associated with overseas positions, and it should be computed in accordance with 5 C.F.R. § 550.805. Additionally, we note that the AJ correctly found that CR did not present sufficient evidence that would have established that had she received a selection to a foreign position, she would have received a “subsequent promotion” to yet another position due to her enhanced resume gained by the foreign assignment. 6. Training The AJ also ordered mandatory training for Agency supervisors, managers, and other staff involved in the selection process for the overseas positions regarding their obligations under Title VII. The Agency found in its final decision that because the discrimination against CR occurred 20 years ago, the staff and circumstances have changed and the training is unnecessary. We disagree. The testimony provided at the hearing revealed that Agency-wide gender bias still exists today, particularly from supervisors in the field who are charged with providing recommendations for female SAs who apply for foreign positions and from the staff in the Office of International Operations who make selection recommendations and selection decisions. As a result, we find that significant substantial EEO training is very necessary for all staff involved in the selection process, including but not limited to all staff in the Office of International Operations. As described in the Order below, the Agency must ensure that within 90 days of the date of this decision these individuals have, at a minimum, 24 hours of substantial in-person EEO training with a focus on discrimination under Title VII, management’s responsibilities under Title VII, and merit system principles. 7. Disciplinary Action We note that the AJ ordered that the Agency consider taking appropriate disciplinary action against the responsible management officials identified in the AJ’s Report of Findings who are still employed by the Agency. The Agency did not address this at all in its final decision. 0120122033 27 The record is replete with evidence of rampant discrimination towards female SAs both in the selection process for foreign positions and in the workplace in general. The record establishes that the discrimination was not limited to staff within the Office of International Operations; management officials in the field who were charged with writing recommendations for female SAs for foreign positions also engaged in discriminatory conduct. The Agency cannot take this compelling evidence of discrimination lightly, and must consider taking appropriate disciplinary action against the named individuals in the AJ’s decision to ensure that EEO matters are taken seriously within the Agency and to send the message that discrimination is not tolerated in the workplace. We remind the Agency that EEO training is not considered disciplinary action. Gender Discrimination Remedy Plan When discrimination is found in a class complaint, the Agency must eliminate or modify the employment policy or practice out of which the complaint arose. See 29 C.F.R. § 1614.204(l)(1). The Agency is ordered to immediately take meaningful and effective measures to ensure that discrimination within the Agency does not continue. These measures shall include, but are not limited to, the establishment and implementation of an Agency-wide “Gender Discrimination Remedy Plan” designed to eliminate discrimination against female employees. Within the Gender Discrimination Remedy Plan, the Agency must identify barriers for females within the Agency, and determine the causes of the identified barriers. The plan will also establish clear action plans designed to eliminate those barriers. The Gender Discrimination Remedy Plan must include clear recruiting and selection objectives. The plan must also include the establishment of clear, systematic, and consistent hiring policies and procedures that eliminates the possibility of discrimination when recommending and selecting SAs for foreign assignments. The plan will ensure that these policies and procedures are well communicated, consistently applied, and fairly implemented. The plan should also establish measures to ensure diversity amongst selecting officials and the Career Board. The Gender Discrimination Remedy Plan must also establish a relationship between the EEO office and selecting officials, including a meaningful role for the EEO office to provide support to selecting officials. This shall include the EEO office providing selecting officials with workforce data on a regular basis. The Gender Discrimination Remedy Plan must provide for EEO accountability measures for management officials, and should ensure that senior management holds supervisors and selecting officials accountable for promoting diversity in the workplace. This should include ensuring that promoting diversity in the workplace is part of the appraisal process for managers 0120122033 28 and supervisors. The plan should establish performance standards with positive steps that managers and supervisors can take to support the Agency’s EEO program. The Agency shall monitor the Gender Discrimination Remedy Plan annually for at least five years after its implementation to ensure that it has effective and tangible results. This should include collecting and analyzing workforce data including, but not limited to: applicant flow data; exit interviews; climate assessments; results from female SA focus groups; input from employee groups and special emphasis program managers; and findings of discrimination. If the Agency discovers that the Gender Discrimination Remedy Plan and other measures taken are not effective, it will adjust its plan and identify more effective ways to eliminate discrimination in the workplace. The Agency shall report all of the measures it has taken to end discrimination, including the Gender Discrimination Remedy Plan and the results of these measures, as part of its barrier analysis in its annual MD-715 report submitted to the Commission for the next five years. Class Wide Relief - Phase II We note that during the first phase of a class action complaint (Phase I), the AJ determines whether the Agency engaged in discriminatory acts but does not guarantee that individual class members will receive relief. Teamsters, supra at 362. During Phase II, the aggrieved class members must offer proof that they are entitled to relief. Id. We note that we agree with the AJ’s recommendation that the class is entitled to the following make-whole relief: compensatory damages, such as pecuniary and non-pecuniary damages (not to exceed $300,000); placement in a foreign assignment; retroactive promotion with back pay for non-selection between 1990-1992; applicable back pay benefits; reinstatement; and any other appropriate corrective actions. We note that where a finding of discrimination against a class has been made, there is a presumption of discrimination as to each member of the class. 29 C.F.R. § 1614.204(k)(l)(3). The Agency has the burden of proving by clear and convincing evidence that a class member is not entitled to relief. 29 C.F.R. § 1614.204(l)(3); EEO Management Directive 110 (MD110), Chapter 8, XI. A. The Agency is ordered to begin Phase II of this class action case within 30 days of receiving this decision.10 10 If either party requests reconsideration of this decision, Phase II will be held in abeyance pending the outcome of the request for reconsideration. In accordance with our regulations, the Agency shall notify class members and the class representative of this decision through the same media employed to give notice of the existence of the class complaint. 29 C.F.R. § 1614.204(k); MD110, Chapter 8, X. D. The 0120122033 29 notice, where appropriate, shall include information concerning the rights of class members to seek individual relief and of the procedures to be followed. Id. Within thirty (30) days of receipt of notification of this decision, a class member who believes that she is entitled to individual relief must file a written claim with the head of the Agency, or with the agency's EEO Director. 29 C.F.R. § 1614.204(l)(3). The claim must include a specific, detailed showing that: 1. The claimant is a class member who was affected by the discriminatory policy or practice; and 2. The discriminatory action occurred within the period of time for which the agency found class-wide discrimination in its decision. Id. Within ninety (90) calendar days of receiving an individual claim, the Agency must issue a final decision on that claim. Id.11 The Agency's final decision must include a notice of the right to file an appeal with the Office of Federal Operations or a civil action within the applicable time limits. Id. 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. The Agency is ordered to comply with the Order below. ORDER The Agency is ordered to take the following actions: 1. Within 30 (thirty) days from the date this decision becomes final, the Agency is ordered to begin Phase II of this class action case as described above and in accordance with the EEOC’s regulations and EEO Management Directive 110. 2. The Agency will immediately take meaningful and effective measures to ensure that discrimination within the Agency does not continue against female SAs who apply for foreign assignments. These measures shall include, but are not limited to, the creation and implementation of a Gender Discrimination Remedy Plan designed to eliminate the discrimination, as described above. The Agency shall monitor these measures for at least five years to ensure that its implementation has effective and 11 We note that in accordance with 29 C.F.R. § 1614.204(l)(3), the AJ retains jurisdiction over the complaint in order to resolve any disputed claims of class members and may hold hearings or otherwise supplement the record on a claim filed by a class member. 0120122033 30 tangible results. The Agency shall report these measures and results as part of its barrier analysis in its annual MD-715 report for the next five years. 3. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency must pay CR $150,000.00 in non-pecuniary compensatory damages. 4. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency must pay CR $3,150.06 for pecuniary compensatory damages. 5. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency must pay CR $1,080,354.50 in attorney’s fees. Additionally, the Agency shall process any additional request for attorney’s fees associated with this appeal as discussed below. 6. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency must pay CR $291,674.77 in costs. 7. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency shall retroactively promote CR to the position in Curacao for which she applied and ultimately was not selected during the class period. The Agency shall pay CR back pay associated with the promotion up to the date of her retirement in 2008, including interest and benefits associated with overseas positions, and it should be computed in accordance with 5 C.F.R. § 550.805. 8. Within 180 (one hundred and eighty) days from the date this decision becomes final, the Agency will ensure that all staff involved in the selection process, including but not limited to all management officials who may be tasked with writing recommendations for SAs who apply for foreign positions and all staff in the Office of International Operations, be provided with a minimum of 24 hours of substantial live in-person EEO training with a focus on discrimination under Title VII, management’s responsibilities under Title VII, and merit system principles. 9. The Agency shall strongly consider taking appropriate disciplinary action against the named management officials in the AJ’s decision, as discussed above. 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(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 10. The Agency shall post the notice discussed below. 0120122033 31 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 verifying that all of the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at all Agency facilities that have potential SA positions, both domestic and foreign, and within the Office of International Operations in Washington, DC, 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 (H0610) 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 (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) 0120122033 32 (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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 0120122033 33 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 June 7, 2013 Date