0720110017
05-01-2013
Complainant, v. Mark G. Pearce, Chairman, National Labor Relations Board, Agency.
Complainant,
v.
Mark G. Pearce,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 0720110017
Hearing No. 520-2009-00247X
Agency No. BKLN-08-01
DECISION
On December 23, 2010, the Agency issued a decision and, also, filed an appeal, requesting that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) November 15, 2010 finding of 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 Agency also requests that the Commission modify the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a grade level GS-14 Senior Field Attorney at the Agency's Brooklyn Field Office, Region 29 facility in New York where he had been working since August 1982.
Complainant initiated EEO Counselor contact in November 2007. In his complaint, dated January 3, 2008, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), when the Agency failed to select him for a GS-14 Supervisory General Attorney position in Region 29 in Brooklyn, New York on November 28, 2007.1 Complainant also alleged that on June 3, 2008, the Agency discriminated against him on the basis of reprisal for having filed a discrimination complaint regarding his non-selection. He alleged that his supervisor met with him and issued a written memorandum criticizing his work performance and characterizing his work as deficient.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
A three-day hearing was held on April 1, April 2, and April 29, 2010. The AJ issued her decision on November 15, 2010, finding discrimination.
The Agency subsequently issued its decision indicating that it would not implement the decision of the AJ for "good cause" which it would delineate in its appeal.
Prima facie case and legitimate, nondiscriminatory reason
In her decision finding discrimination, the AJ first found that Complainant had established a prima facie case of disparate treatment based on race regarding his non-selection. The AJ determined that Complainant was found qualified for the position, having made the best qualified list (BQL) of applicants; that he was not selected for the position; and that a Caucasian was selected. The AJ further concluded that the Agency had articulated legitimate, nondiscriminatory reasons for its selection of the selectee. Specifically, the Agency had noted that the selectee was the better candidate because he consistently demonstrated exceptional case-handling skills; taught at a local law school; assisted in drafting a training module; showed initiative with investigations and assignments; and consistently met Agency's time targets. The Agency also articulated that the selectee was ambitious; displayed leadership qualities; demonstrated virtuosity in handling complex cases and was consistently rated outstanding on performance evaluations. On the other hand, the Agency determined that Complainant was not the superior candidate and was therefore not chosen.
Pretext
The AJ concluded that Complainant had established that the Agency's reason for his non-selection was pretext to hide discrimination based on race. Noting that Complainant bore the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency's actions were motivated by discrimination, the AJ found that Complainant had carried this burden. The AJ determined that Complainant had shown pretext by providing credible evidence of bias, pre-selection, and management deviation from standard selection procedure. The AJ also found the testimony of management officials (Regional Director, Assistant Regional Director and the Regional Attorney) was not worthy of belief. In so finding, the AJ noted that management officials contradicted themselves throughout; were not forthcoming with pertinent information that they had sworn and affirmed to as being true and accurate during the discovery phase; and provided untruthful answers to interrogatories concerning the selection process and who had chosen the selectee.
The AJ noted in her decision that from 1982 to 1991, Complainant was the only African-American attorney in Region 29 in Brooklyn and that it was only through the initiative of the Agency's General Counsel that attorney diversity had begun in Region 29, when three African American attorneys were hired. The AJ also noted that as late as May 2008, the Agency had only the three African American attorneys and Complainant. The AJ also found that for the past 25 years, Region 29 had never had an African American Supervisory Attorney, Supervisory Field Examiner, Regional Attorney, Deputy Regional Attorney, Assistant Regional Director or Regional Director.
The AJ found that Complainant had applied for the Supervisory General Attorney position in Region 29 on seven occasions. Each time a Caucasian was selected. Complainant was not selected although the now Assistant Regional Director had rated Complainant as ready for the higher-graded position of Deputy Regional Attorney in 1993. The AJ also found that no supervisory position in Region 29 was ever held by a non-Caucasian.
The AJ found credible the testimony of African American attorneys, including Complainant, that they were unlikely to receive bonus awards whereas the selectee was consistently rated as outstanding and, also, automatically and continuously given complex cases. The AJ also found that management ignored assigning Complainant complex cases and that Complainant had to file an EEO complaint in 2002 to be assigned complex cases. The AJ found that for about six months after the settlement agreement of Complainant's 2002 complaint, Complainant was assigned more difficult, complex, and high priority cases but that shortly thereafter, management began assigning less complicated cases to Complainant, although Complainant continued to request complicated, high priority cases.2 The AJ also found that Complainant received laudatory evaluations from the Regional Director and his supervisor for his work on complex cases and that management never criticized or negatively critiqued Complainant's work when he was handling complicated cases. The AJ found that Complainant consistently received stellar performance evaluations prior to November 2007.
The AJ noted the Regional Director's admission during the hearing that he referred to Caucasian attorneys, including the selectee, as "stars" but never referred to or perceived African American attorneys as stars. The AJ also noted that throughout the hearing, she listened to the Regional Director, the Assistant Regional Director, Regional Attorney, and the Supervisory Field Examiner "lavish praise" on the selectee but they were "reluctant" to offer positive descriptions of Complainant's work or character. The AJ found implausible that any employee could be 100 percent perfect all of the time.
The AJ also found that both selectee and Complainant were very good and competent attorneys but to management witnesses, only the selectee could do no wrong. The AJ noted that to management witnesses, Complainant was merely average and in need of constant guidance. She found that management never informed Complainant about the seriousness of his allegedly poor work performance and continued to give him laudatory evaluations. The AJ noted the "commendable" overall ratings of Complainant and outstanding rating on certain abilities and laudatory comments and narratives on his evaluations for the four years prior to his non-selection. The AJ found not credible testimony that the Agency was doing Complainant a favor to rate his work as commendable while actually believing that Complainant was merely an average employee.
The AJ found credible the testimony that the selectee was given the opportunity to act in the position of a Supervisory Attorney more than Complainant and Attorney-1 and Attorney-2, two African Americans who were never asked to act since their hire 20 years previously. Attorney-3 (African American) who had been in the office since 1991 was not asked to act until sometime in 2008, after Complainant filed his complaint. The AJ pointed to the directive of the Agency that opportunities to act in a supervisory capacity were to be spread around in order to ensure that all qualified, experienced attorneys received the opportunity to work in a supervisory position.
Also found credible by the AJ was testimony that in late 2006, when an Operations Management Memorandum (OM) came from Washington D.C to Regional Directors, Officers in Charge and Resident Officers concerning the creation of the position of an Outreach Coordinator in each region, none of the African American attorneys were made aware of the new position or afforded the opportunity to volunteer for it. Although Attorney-3 had substantial outreach experience and was interested in such duties, the Regional Director was unaware of Attorney-3's background and never asked if she were interested in the position. The AJ found incredible the Regional Director's testimony that the selectee whom the Regional Director designated for the position, had come to him to volunteer for the position. The AJ also noted that there was no testimony from selectee that he had read the OM addressed to Regional Directors.
Regarding pre-selection, the AJ found that certain key opportunities were afforded to the selectee to prepare him for the position of Supervisory Attorney that were not afforded to any other African American attorney in Region 29. The AJ noted the consistent designation of the selectee to act in a supervisory capacity and the Regional Director's designation of the selectee to be Outreach Coordinator. The AJ found that the selectee's role as the Outreach Coordinator was cited as a reason why the selectee was the better candidate for promotion.
Also regarding pre-selection, the AJ noted that that the selectee and the Deputy Regional Attorney (who was at the relevant time, the selectee's and Complainant's supervisor but later retired) attended agent meetings with other Board agents and the Regional Director. The AJ also noted that the Deputy Regional Attorney would have the selectee routinely provide supervisory guidance and direction to more junior attorneys even when the selectee was not acting as a supervisory attorney.
The AJ identified further evidence of pretext as the actions taken by management surrounding the selection of the selectee. The AJ determined that management pre-selected the selectee and that although pre-selection does not in and of itself violate Title VII "absent some indication of biases based on prohibited factors," the AJ noted that the Commission has ruled that evidence of pre-selection coupled with procedural irregularities and subjective criteria can support an inference of discrimination.
The AJ found, in terms of procedural irregularities, that the Regional Director decided that he would choose the selectee two weeks before he actually received the Rating and Ranking Memorandum from the Assistant Regional Director and the Regional Attorney and that the two officials did not follow the directives for Evaluating and Ranking Applicants as outlined in the Notice of Vacancy. The AJ found that the Notice of Vacancy specified that eligible applicants would be evaluated and ranked as provided in the Administrative Policy Bulletin of January 6, 2003, the subject of which was the NLRB Merit Promotion Plan. The AJ also found that the Merit Promotion Plan required that managers and supervisors consider all best qualified candidates referred and make all selections under merit principles, and advise employees how they could improve their qualifications and increase their chances for future promotions. The Merit Promotion Plan also required managers and supervisors to objectively assess employee performance based on current appraisal and potential performance, ensure that violations of the Merit Promotion Plan did not occur either by error or design, and that candidates be evaluated against quality ranking factors and scored.
Also concerning the procedural irregularities, the AJ found that the required steps were not adhered to in the selection process, noting that neither the Assistant Regional Director nor the Regional Attorney made any recommendation regarding the applicants in the Rating and Ranking Memorandum, nor engaged in any careful consideration of the other applicants. The AJ found that that the management team in Region 29 essentially "flouted" the directives in the NLRB Merit Protection Plan and selected whomever the team wanted to select with little regard to objective merit. The AJ discounted the testimony of the Assistant Regional Director regarding the reason why none of the applicants were ranked or scored and no recommendation made.
The AJ also found that lack of racial sensitivity in Region 29 was buttressed by the testimony of the three African American attorneys and Complainant who felt marginalized in the office and who were not included in discussions that were either related or unrelated to work. She noted that African Americans felt invisible and isolated and were not recognized for their work or lauded at staff meetings as was the work of Caucasian attorneys. The AJ also noted testimony that all three stressed that management did not seek out their opinions on cases or assignments nor did management seek out African American attorneys for advice, guidance, perquisites or assignments.
The AJ also found that in 2007, the Agency's EEO Director had to conduct sensitivity training concerning a remark in which the Regional Attorney referred to an Asian American attorney as "Gunga Din" because she was carrying water.3 The AJ found that the Regional Attorney who made the remark was not present at the training, even though it was scheduled as a result of his comment. She also found that the Regional Attorney was not counseled for having made a remark that was offensive to the Asian American attorney who requested the sensitivity training. The AJ found further that the Assistant Regional Director and the Deputy Regional Attorney questioned the need for the sensitivity training and felt that the incident was overblown.
Retaliation
Regarding retaliation, the AJ found that Complainant had established a prima facie case. In so finding, the AJ noted that Complainant had engaged in protective activity and that the Regional Director, the Assistant Regional Director, the Regional Attorney, and the Supervisory Field Examiner were aware that Complainant had filed a discrimination complaint and that their actions occurred in temporal proximity to Complainant's EEO activity.
The AJ found that shortly after filing his complaint, Complainant suffered an adverse action when he received criticism of his work and was threatened with the possibility that his performance rating would be lowered, although as late as November 1997, Complainant's performance rating was "commendable." The AJ found that two categories in his performance evaluation were rated as "outstanding" with laudatory comments about his leadership and legal work. The AJ also found that almost immediately after Complainant filed his complaint, the Regional Director and the Supervisory Field Examiner had conversations about Complainant's work and the conversations appeared out of nowhere. The AJ noted that the Supervisory Field Examiner was not Complainant's supervisor until February 2008, when Complainant was reassigned to the Supervisory Field Examiner, who was not an attorney and who had started at the Agency as a clerk-typist when Complainant was already engaged in legal work. The AJ found that a reasonable person would be dissuaded from opposing discrimination if he knew that the result would be to receive unwarranted criticism of his work and a potential downgrade in their annual evaluation.
The AJ found that the Agency's articulated reason for its actions was that Complainant was performing at an unsatisfactory level. The AJ found further the Agency's articulated reasons about Complainant's performance were pretext based on his overall rating of commendable and praise for his taking of excellent file notes which was contrary to management testimony that Complainant failed to make file notes. Also regarding pretext, the AJ found that none of Complainant's evaluations recounted anything remotely negative about his work until shortly after Complainant filed his discrimination complaint. The AJ concluded that Complainant had established by a preponderance of the evidence that the Agency had retaliated against him because he filed an EEO complaint when he was not selected for the position.
Remedies and Pecuniary Damages
Among other remedies, the AJ ordered that the Agency offer Complainant a position as a Supervisory General Attorney, GS-905-14, "within his geographical area" within 30 days. The AJ noted that if Complainant accepted the offer, he was to be reinstated retroactive to the date that he would have been hired. If the offer of employment were declined, the Agency was to award back pay from the date when Complainant would have been appointed to the date that his offer was declined.
Compensatory Damages
The AJ awarded $15,000.00 in compensatory damages.4 In making the award, the AJ noted that she had found credible the testimony of Complainant and his partner regarding the emotional distress that Complainant suffered after his non-selection. He became withdrawn, lost a substantial amount of weight, and lost interest in weight training. The AJ further found that Complainant lost his appetite and had trouble sleeping and he and his partner stopped socializing with friends, stopped going out to see movies and plays, and stopped going out for dinner. Complainant lost interest in doing family things and described the period as a dark time for him, having never felt that depth of depression.
The AJ also found that after receiving criticism and the electronic mail concerning counseling from the Supervisory Field Examiner, Complainant fell into even more of a downward spiral. He lost another 20 pounds and was always on the edge because he did not know from day to day when he went to work what was going to happen to him and whether or not there would be another manufactured issue with respect to his work.
The AJ also found that Complainant felt singled out and attacked and felt that whatever personal relationships or connections had existed at the office were evaporating and there was nothing to hold onto. The AJ found that Complainant found it difficult to get up and get going to go to the office. Complainant lost interest in spending time with friends after the non-selection and felt that all of his hard work over the years was for naught. Complainant's self-worth and self-esteem plummeted. Complainant felt extremely depressed and felt that he had let down himself and the people around him who were proud of him. He began to doubt himself. He began to suffer from eczema.
The AJ also found that although Complainant encountered some family difficulties beginning in November 2008, approximately one year after the non-selection, the family problems were not the cause of the emotional difficulties Complainant experienced as a result of his non-selection and the retaliatory conduct.
Attorney's Fees
In an Order, dated February 4, 2011, the AJ ordered the payment of $80,900.00 in attorney's fees and $1,763.67 in costs. In awarding fees, the AJ noted that on November 19, 2010, she ordered Complainant to submit his statement of fee requests and costs by December 20, 2010, and for the Agency to submit its response by January 25, 2010, but that the Agency had not done so. After reviewing Complainant's request and there being no opposition, the AJ awarded the requested fees and costs. No appeal has been filed concerning the payment of attorney's fees and costs.
CONTENTIONS ON APPEAL
The Agency asserts that the AJ inappropriately substituted her own judgment for that of Agency management regarding the appropriate qualifications for the supervisory position. The Agency also asserts that the AJ's finding of retaliation is based on misapplication of the applicable legal standard and a mischaracterization of critical evidence.
Regarding the relief awarded, the Agency asserts that the AJ's remedy ordering that the Agency provide Complainant a supervisory attorney position within Complainant's "geographical area," rather than in the Region 29 Brooklyn office where the discrimination occurred, was error.
In response to the Agency's appeal, Complainant contends that the AJ's ruling regarding the exclusion of witnesses was proper because the Agency failed to disclose witnesses until the eve of the hearing. Complainant also argues that that the documents excluded by the AJ were properly excluded because they were withheld during discovery and, also, were irrelevant because this selecting official gave testimony that he did not review any documents in making the selection.
Complainant also asserts that substantial evidence supports the AJ's finding that Complainant established a prima facie case of retaliation and pretext for the Agency's explanation of its actions. Complainant asserts that the AJ did not find the Agency's explanation for its actions regarding the non-selection credible and properly found the Agency's explanations to be pretextual. Complainant asserts that what is striking, aside from the wide ranging nature of the attack on the AJ's almost 200 findings, is that the Agency identified only three of the AJ's findings with which to take issue in its appeal brief.
Regarding the relief awarded by the AJ, Complainant asserts that the AJ's decision to direct retroactive reinstatement into a substantially similar position was not error, noting also that Complainant has no objection to placement in either Brooklyn, Buffalo, or New York.
STANDARD OF REVIEW
All post-hearing factual findings by an AJ will be upheld, pursuant to 29 C.F.R. � 1614.405(a), 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.
ANALYSIS AND FINDINGS
As an initial matter, the Commission finds no error regarding the AJ's rulings concerning the witnesses. While the Agency may disagree with the AJ's ruling, the AJ properly excluded the subject witnesses and documents.
By pre-hearing order, the Agency was required to identify and provide copies of the documents that it intended to use at hearing and instead brought them in at the eleventh hour. The Agency knew or should have known that these documents, which related to alleged examples of Complainant's work product, existed. To allow their admission at the eleventh hour would be prejudicial to Complainant's ability to respond to the documents which could have been handpicked for litigation purposes. Likewise, to have witnesses testify to what the Agency knew or should have known would have been prejudicial to Complainant's preparedness and ability to defend.
Regarding the non-selection and reprisal, the Commission finds that the AJ's findings are based on substantial evidence in the record.
We agree with the AJ's finding that Complainant proffered evidence which establishes that the Agency's articulated reasons for not selecting him for the position at issue was more likely than not a pretext for discrimination on the bases of race. In other words, while the Agency's reasons, if true, would constitute legitimate, nondiscriminatory reasons for the Agency's actions, the AJ correctly found that the reasons were designed to conceal discrimination. Further, the AJ properly found that the legitimate, nondiscriminatory reasons advanced by the Agency were insufficient to withstand Complainant's evidence of race-based discrimination which was violative of Title VII. The Commission also finds that the AJ correctly found that that the Agency engaged in retaliatory conduct.
Testimony provided by management officials was inconsistent, contradictory, and purposefully vague. Officials gave statements in their depositions and in their answers to interrogatories but during the course of the hearing distanced themselves from their previous statements, contradicted them, feigned lack of understanding, or tried to explain their inconsistencies away. One management official, the Regional Attorney, admitted during his testimony that while he was serving as an acting Regional Director, he advised an attorney in the office to destroy a document which the attorney had surreptitiously taken from opposing counsel during a hearing.5
Here, we do not find that the AJ's credibility determinations should be discounted. An AJ's credibility determinations 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 � VLB. (Nov. 9, 1999).
Regarding the selection process itself, it was given short shrift. The hiring pattern in the Brooklyn Region 29 office evidences that it had no non-White professional, supervisory employees except for administrative staff. Toward non-Caucasians, there was a lack of assignment of growth opportunities, marginalization and insensitivity by management. In his 25 years, the Regional Director, although he had hired Complainant and Attorneys 1-3, he had not once selected a Black or non-minority supervisory attorney. Attorney-1 was hired in 1993, Attorney-2 in 1991, and Attorney-3 had been hired 18 years previously. Caucasian employees were routinely selected for vacancies, promotions, and awarded quality step increases (QSI).
The Agency contends that the AJ substituted her judgment for that of the selecting official. While the Commission exercises caution in interfering in an Agency's personnel action, this caution is not allowed to undercut the intent of Title VII. Here, while there was a selection process which was to be followed in rating and ranking applicants, this procedure was patently and clearly not adhered to and disregarded with impunity.
Performance was one of the factors considered in making the selection. Given the testimony of management officials, the AJ could properly not accord credence to testimony that the selectee in the instant case was head and shoulders above Complainant. Although the selectee's performance was rated as outstanding, the AJ would have had to succumb to twisted logic to rely on the testimony of the Regional Director that his rating of the selectee was authentic and should be accepted and simultaneously rely on the Regional Director's testimony that the rating which he gave to Complainant was inauthentic and generous and not to be accepted. Even without finding that Complainant was the better qualified candidate, the AJ could find both Complainant and the selectee at least equally qualified and then determine that the reason that Complainant was not chosen was because of his race.
Given the totality of the background information that the Regional Director treated African Americans less favorably in promotional and award opportunities, that he selected only Caucasians for professional supervisory positions in over 25 years as a Regional Director, that he failed to adhere to the required selection procedures, and engaged in blatant pre-selection, the AJ properly found that that Complainant's non-selection was motivated by race. In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), the Supreme Court held that a fact finder is not required, as a matter of law, to find discrimination whenever it finds that the employer's explanation for its actions is not credible. Id. at 519. The Court, however, made clear that a fact finder may find discrimination in such circumstances. Id. at 524. The critical factor is that a fact finder must be persuaded that it was discrimination that motivated the employer to act as it did. Id. Here, the AJ could properly find discriminatory animus based on the substantial evidence of the record.
Regarding the Agency's argument that the AJ erred by ordering that Complainant be placed in a position as a Supervisory General Attorney within his geographical area, we find no error. The Commission has, in non-selection cases, consistently ordered that a complainant be placed in a position within a reasonable commuting distance. Spicer v. Dep't of the Interior, EEOC Petition No. 04980007 (Sept. 24, 1998); Patterson v. Dep't of Agriculture, EEOC Request No. 05940079 (Oct. 21, 1994). The record indicates that Complainant had obtained a hardship transfer in 2008 to Buffalo to assist his brother in the care of their parents. Complainant testified that as one of his remedies, he wanted to return to Brooklyn as a supervisory attorney. Moreover, Complainant has indicated in his appeal that he had no objection to placement in a supervisory attorney position in either Buffalo or Brooklyn, New York.
We also find that there is substantial evidence in the record to support the finding that the Agency engaged in retaliatory conduct and actions.
Compensatory Damages
The Agency raised no arguments regarding the payment of the compensatory damage award. We find therefore that the AJ's award of $15,000 for non-pecuniary, compensatory damages was appropriate and is not "monstrously" excessive. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). The amount takes into consideration the severity of the harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Van Wolken v. Dep't of Homeland Security, EEOC Appeal No. 07A30134 (May 11, 2004), request for reconsideration denied, EEOC Request No. 05A40960 (Aug. 25, 2004) ($12,000 non-pecuniary damages was awarded to Complainant who was harassed and suffered stress, insomnia, headaches, panic attacks, and began seeing a therapist and taking medication); Jones v. Dep't of Commerce, EEOC Appeal No. 01A13671 (May 2, 2002) ($15,000 non-pecuniary damages awarded to Complainant who experienced depression, stomach pains, nausea, headaches, dizziness, and problems with family relationships for approximately 9 months); McGraw v. Dep't of Veterans Affairs, EEOC Appeal No. 07A20121 (Nov. 27, 2002) ($15,000 for stress, depression, and sleeplessness with evidence of other contributing factors).
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 decision. The Agency is directed to comply with the AJ's order as modified and as set forth herein.
ORDER
The Agency is ORDERED to take the following actions:
1. Within 60 days of the date this decision becomes final, determine the appropriate amount of back pay and all other benefits owed to Complainant (with interest) pursuant to 29 C.F.R. � 1614.501.
2. If the Agency has not already done so, the Agency shall offer Complainant within thirty (30) calendar days of the date of the receipt of this decision, a position as a Supervisory General Attorney GS-905-14, Position No. AP-134 within commuting distance of or in the Brooklyn office. The offer shall be in writing and provide Complainant 15 days of the offer to notify the Agency of his acceptance or rejection of the position. Failure to respond will be considered a declination of the offer unless the Complainant can show that circumstances beyond his prevented a response within the time limit. If the offer is accepted, appointment shall be retroactive to the date that Complainant would have been hired. Back pay, computed in the manner prescribed by 5 C.F.R. � 55.805, shall be awarded from the date Complainant would have entered on duty until the date he actually enters on duty. Interest on the back pay shall be included in the back pay computation where sovereign immunity has been waived. If the offer is declined, the Agency shall award Complainant a sum equal to the back pay he would have received and computed in the manner prescribed by 5 C.F.R. � 550.805 from the date he would have been appointed until the date that the offer is declined subject to limitation of paragraph (b)(3) of 29 C.F.R. 1614.501.
3. Any back pay liability shall cease to accrue with the actual placement of Complainant in the position or on the date the offer is declined.
4. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, as appropriate, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 days of the date the Agency determines the amount it believes to be due.
5. The Agency shall pay Complainant compensatory damages in the amount of $15,000.00.
6. The Agency shall provide training for the staff of Region 29. At least four hours of training shall be provided to each manager and supervisor in Region 29, including each of the supervisors and managers involved in the discrimination. The training shall address management responsibilities with respect to eliminating race discrimination in the workplace and retaliation.
7. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be a disciplinary action. 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 reasons for its decision not to impose discipline. If any of the management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
8. The Agency shall post copies of the attached notice in accordance with the statement entitled "Posting Order."
9. The Agency shall pay attorney's fees to Complainant in the amount of $80,000.00 and costs in the amount of $1,763.67.
10. The Agency shall 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 the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post a Notice to all employees at its Region 29 Brooklyn office informing them of their right to a work environment free of illegal discrimination, assurance that discrimination will not be tolerated, and that employees have the right to oppose unlawful employment practices. 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)), 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.
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
5/1/13
__________________
Date
1 Testimony from the Regional Director indicated that the Agency is divided into four districts with Brooklyn's location in District 1.
2 Complainant testified that he did not make any claim for any alleged breach of settlement.
3 The Regional Attorney was part of the selection process in the instant non-selection.
4 The record does not indicate that Complainant sought any specific amount in compensatory damages. In his written closing statement submitted to the AJ, Complainant asked for a "substantial award" of compensatory damages for the "deep emotional injury." No amount was specified. Also, in response to the Agency's appeal, Complainant asked that the AJ's decision be affirmed in all respects.
5 The Agency suspended the Regional Attorney for negligent supervision. According to the Regional Attorney, the New York State Bar did not find that he had engaged in any misconduct.
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0720110017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720110017