07a40030
03-30-2005
David C. Solar Complainant v. John W. Snow, Secretary, Department of the Treasury, Agency.
David C. Solar v. Department of the Treasury
07A40030
March 30, 2005
.
David C. Solar
Complainant
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 07A40030
Agency Nos. 99-2123 and 99-2179
Hearing Nos. 150-1998-08493X and 150-2000-08121X
DECISION
The Commission accepts the parties' timely filed appeals, pursuant to 29
C.F.R. � 1614.405. The agency requests that the Commission affirm its
partial rejection of the EEOC Administrative Judge's (AJ) finding that
the agency retaliated against the complainant and its rejection of the
AJ's order of relief, which included training and equitable relief. In
addition, the complainant appeals the denial of attorney fees and costs
under the ADEA and the portion of the AJ's decision which rejected the
complainant's other retaliation claims. The Commission AFFIRMS, in part
and REVERSES, in part, the agency's final orders.
The record reveals that the complainant was a GS-1811-12 Criminal
Investigator, employed at the agency's Internal Revenue Service Criminal
Investigation Division, North Florida Division facility. The complainant
filed a formal EEO complaint with the agency, alleging that the agency
discriminated against him on the bases of age (D.O.B. 7/19/1955) and
retaliation for his prior ADEA activity when he was not selected for
promotion to a Special Agent, GS-1811-13 position and when he was denied
a Manager's award. The complainant also claimed that he was subjected
to adverse treatment in reprisal for his prior activity.
At the conclusion of the investigations, the complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).
Following a consolidated hearing,<1> the AJ found [in TD 98-2092],
that the agency did not discriminate against the complainant on the
basis of his age or retaliation when the complainant was not selected
for promotion and was denied a Manager's award in November of 1997.
In TD 2123 and TD 2179, the AJ found that the complainant was unlawfully
subjected to retaliation when: 1) he received negative comments from the
Acting Group Manager (SS) in an �Evaluation of Special Agent Performance�
report; 2) he received an �Assessment of Closed Subject Investigation�
report that incorrectly identified the complainant as the Primary Agent
of an investigation that resulted in an inaccurate appraisal of the
investigation, 3) the complainant did not receive a performance award for
a rating in October 1998 re-validated performance evaluation, contrary
to agency policy, and 4) the acting manager issued the complainant an
erroneous mid-year performance evaluation on January 28, 1999.
The AJ did not provide for attorney's fees or costs because the Commission
is not empowered to grant such relief in federal sector cases under the
ADEA and the AJ noted that all of the prior EEO activity pertained to
a prior ADEA claim.<2>
An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held. 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).
After a careful review of the record, the Commission agrees with the
AJ's findings of retaliation and the order of equitable relief set forth
by the AJ. We discern no basis to disturb the AJ's finding of reprisal
discrimination or order of relief as to the complainant. The findings of
fact are supported by substantial evidence, and the AJ correctly applied
the appropriate regulations, policies, and laws. Further, we agree with
the AJ that the complainant was not discriminated against with respect
to his age or reprisal with regard to the non-selection and the denial of
the Manager's Award in November 1997. The Commission, therefore, reverses
the agency's decision in part and returns the matter to the agency to take
corrective action in accordance with this decision and the Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall separate and expunge from the
complainant's personnel file and other centralized location other than
its legal files pertaining to this case, the August 31, 1998, Memorandum
from the supervisor with respect to the complainant's Re-validated
Evaluation, the Form 6082 (Assessment of Closed Subject Investigation);
and the complainant's Mid-Year Evaluation, dated December 16, 1998;
and any and all documents which incorporate, refer, or make reference
to the above documents.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall redact the reference on the Re-validated
Evaluation to the Memorandum ; and in its place in the agency records
the following words inserted: �Because a Mid-Year Evaluation was not
performed on David Solar, his evaluation from the prior year is being
re-validated.�
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall retroactively grant the complainant a
Performance Award for his re-validated evaluation that exceeded 4.3,
and which covered the rating period from May 1, 1997 to April 30, 1998.
Agency personnel records shall be updated within sixty days of the
grant to reflect that the complainant's receipt of this award.
The agency shall post at the Criminal Investigative Division of the
North Florida District copies of the attached Notice. Copies of the
Notice, after being signed by the agency director, shall be posted at
the agency, immediately upon receipt, as set forth below.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency is directed to provide eight hours of
training for the three deciding officials named on page 97 of the AJ
decision who engaged in the discrimination. The agency shall address the
officials' responsibilities with respect to prohibiting and refraining
from discrimination in the workplace. Each shall receive a minimum of
eight (8) hours of EEO training with respect to the Age Discrimination in
Employment Act to ensure that acts of retaliation are not taken against
any employee who opposes unlawful discrimination, and that persons
reporting, assisting or challenging acts perceived to be unlawful are
treated in a lawful manner in accordance with the EEO laws.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency is to determine whether disciplinary action
against the responsible individuals discussed herein is appropriate. The
agency shall record the basis for its decision to take or not to take
such actions, and report the same to the Commission in the same manner
that the implementation of the rest of the order is reported.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back-pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Internal Revenue Service Criminal
Investigative Division of the North Florida District facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 30, 2005
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of that person's RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY
with respect to hiring, firing, promotion, compensation, or other terms,
conditions, or privileges of employment.
The United States Department of Treasury Internal Revenue Service Criminal
Investigation Division North Florida Division supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The United States Department of Treasury Internal Revenue Service
Criminal Investigation Division North Florida Division has been found to
have discriminated against the individual affected by the Commission's
finding when the individual was retaliated against. The United States
Department of Treasury Internal Revenue Service Criminal Investigation
Division North Florida Division shall provide the affected individual
with back pay, expungement of the record, train the responsible managers
and post this notice. The United States Department of Treasury Internal
Revenue Service Criminal Investigation Division North Florida Division
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The United States Department of Treasury Internal Revenue Service
Criminal Investigation Division North Florida Division will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
______________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141 This case was consolidated with that of Robert
L. Segers (EEOC Appeal No. 07A40033), which is being addressed in a
separate decision.
2 We note that neither compensatory damages nor attorney's fees are
available remedies under the ADEA. See Falks v. Department of Treasury,
EEOC Request No. 05960250 (September 5, 1996).