0720080012
09-24-2008
Jesus Clemente, Complainant, v. Michael B. Mukasey, Attorney General, United States Department of Justice, (Executive Office for Immigration Review), Agency.
Jesus Clemente,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
United States Department of Justice,
(Executive Office for Immigration Review),
Agency.
Appeal No. 0720080012
Agency No. B-02-2448
Hearing No. 100-2004-00080X
DECISION
Following its November 7, 2007 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) 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
affirm its rejection of the relief ordered by the AJ. For the following
reasons, the Commission reverses the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the bases of his national origin (Hispanic) and sex (male)
when the agency failed to select him for one of four Immigration Judge
positions located in York, Pennsylvania; Chicago, Illinois; and New York,
New York.
BACKGROUND
During the period at issue, complainant worked as a GS-14 Attorney at the
agency's Immigration and Naturalization Service facility in California.
The agency issued a vacancy announcement for an Immigration Judge
position for the Immigration Court in Chicago, Illinois on November
28, 2001. Complainant and approximately 101 other individuals applied
for the position. Five candidates were selected to be interviewed for
the vacant position. Complainant was not selected to be interviewed.
On December 3, 2001, the agency issued a vacancy announcement for
an Immigration Judge position for the Immigration Court in York,
Pennsylvania. Complainant and approximately 94 other individuals
applied for this position. The record does not reveal how many people
were interviewed for the position, but complainant was not interviewed.
On December 14, 2001, the agency issued a vacancy announcement for
two Immigration Judge positions for the Immigration Court in New York,
New York. Complainant and approximately 104 individuals applied for the
position, and six unidentified candidates were selected for an interview,
but again complainant was not selected for an interview.
The agency indicated that the applications were screened by the
agency's Human Resources department to ensure that the applicant met
the minimum qualifications for the position, e.g., a Bachelor of Laws
(LLB) or Juris Doctorate (JD) degree, law license, and seven years
of post- bar legal experience. The Special Assistant to the Chief
Immigration Judge then created a folder for each applicant that contained
the application and a voting sheet. The applications were reviewed by
nine to twelve Supervisory Judges1 who rated the applications as either
"highly recommended," "recommended," or "not recommended." The candidates
were ranked in order to determine who would be offered an interview.2
The agency indicated that it was its practice to only grant interviews
to the four applicants with the most highly recommended ratings.
The applicants were not compared against each other, but were assessed
against five factors which included: (1) knowledge of immigration laws
and procedures; (2) substantial litigation experience, preferably in
a high volume context; (3) experience handling complex legal issues;
(4) experience conducting administrative hearings; and (5) knowledge
of judicial practices and procedures. The actual voting sheets were
discarded, however. The agency maintained that complainant did not
receive enough highly recommended votes to garner an interview at any
of the three locations. Three women and one man were selected for the
subject position. None of the selectees were Hispanic.
On July 16, 2002, complainant filed the instant EEO complaint. Therein,
complainant claimed that he was discriminated against on the bases of
national origin (Hispanic) and sex (male) when he was not selected for
one of the subjects.
At the conclusion of the agency's investigation, complainant was
provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Thereafter, on July 8, 2005,
the AJ informed the agency that he intended to issue a decision without
a hearing (summary judgment) in favor of complainant. The AJ notified
the agency that in order to defeat summary judgment, the agency had to
provide proper documentary or testimonial evidence, including signed
witness statements, sworn affidavits, interrogatory answers, admissions,
deposition testimony or other supporting materials that provided clear
and specific explanations as to why complainant was not selected to be
interviewed for the Immigration Judge positions.
The agency submitted an Opposition to the Notice of Intent to Issue
Decision Without a Hearing on September 2, 2005. The agency also
included a declaration from the Chief Immigration Judge (CIJ), which
was prepared on or about June 2, 2005, and a copy of his deposition
transcript.3 After both parties submitted motions for summary judgment,
the AJ assigned to the case issued a decision without a hearing on July
24, 2006, finding that the agency had discriminated against complainant.
The AJ found that complainant established a prima facie case of
discrimination on the bases of national origin and sex with respect to
his non-selections. The AJ also determined that the agency failed to
articulate a legitimate, nondiscriminatory reason for its action. The
agency had maintained that complainant was not selected to be interviewed
for any of the vacant positions because, after the application packages
were reviewed and rated by the Supervisory Judges, the complainant was
not one of the four applicants with the most highly recommended ratings.
Specifically, the CIJ explained the reason he gave complainant a rating
of recommended,4 and he indicated that the candidates, who were selected
for interviews, and who were ultimately selected, were "more qualified"
than complainant. Notwithstanding, the AJ found that, although the CIJ
explained in detail why he gave complainant a rating of recommended for
the interview and not highly recommended, the remaining eight or more
Supervisory Judges who participated in the selection processes for the
positions at issue failed to provided specific justification for the
ratings they gave complainant, which resulted in his not being referred
for an interview. The AJ found that the agency failed to provide specific
information that explained why the Supervisory Judges gave complainant
a recommend rating.
The AJ further determined that this case was similar to Glomski
v. United States Postal Service, EEOC No. 01955157 (1997) (request for
reconsideration denied on February 20, 1998). In Glomski, the agency
explained the selection procedures, but it did not explain the reasons
for the assignments of points to the various candidates which resulted
in the ultimate selection. In that case, the Commission found that the
agency failed to adequately articulate legitimate, non-discriminatory
reasons for the selection decision in order to rebut the complainant's
prima facie case, and it concluded that complainant was entitled to a
finding of discrimination as a matter of law. Applying the aforesaid
analysis in the present case, the AJ found that, with the exception
of the CIJ's sworn declaration, the agency's articulated reasons for
complainant's non-referral for an interview, and ultimate nonselection,
consisted of a description of the selection procedures. The AJ indicated
that although CIJ explained why he did not rate complainant as highly
recommend for an interview, it was undisputed that he was only one of at
least 8 panel members, and CIJ's individual rating did not carry greater
weight than the other members of the selection panel. Moreover, the AJ
found that, similar to the Glomski case, the agency failed to provide
specific information, either during the investigation of the complaint,
during discovery, or in response to his Notice of Intent to Issue a
Decision Without a Hearing that explained why the Supervisory Judges,
other than the CIJ, assigned their respective ratings to complainant
and the selectees. The AJ also noted that the agency failed to provide
evidence, including copies of voting sheets, testimonial evidence,
notes taken contemporaneous with the interviews, sworn declarations,
discovery responses, deposition testimony, or signed written statements
of the Supervisory Judges who conducted interviews, that explained
rankings of the candidates and why certain candidates were interviewed
and ultimately selected, but complainant was not.
The AJ determined that in the absence of such evidence, complainant
was left to speculate regarding the specific reasons that all but one
of the recommending panel members gave him a particular rating, which
resulted in his non-referral for an interview and ultimate nonselection
for any of the positions at issue. The AJ explained that this action
resulted in complainant's denial of the full and fair opportunity to
demonstrate pretext by providing specific evidence that demonstrated
that the articulated reasons of the recommendation panel members for not
selecting him for an interview were not credible and/or were a pretext
for intentional discrimination. The AJ concluded that complainant
demonstrated a prima facie case of discrimination on the bases of national
origin and sex; and the agency failed to meet its burden of production
to articulate legitimate, nondiscriminatory reasons for its actions and,
thereby, rebut the prima facie inference of discrimination. The AJ
concluded that complainant was entitled to a finding of discrimination
as a matter of law.
On September 19 and November 16, 2006, the AJ conducted a hearing
in order to determine what relief, if any, complainant was entitled
to receive as a result of the discriminatory nonselection. The AJ
found that complainant was not entitled to past pecuniary compensatory
damages, because he failed to show a nexus between the damages and the
discrimination since the record showed that complainant began treatment
for a stressful work environment prior to learning of his nonselection.
The AJ further found that complainant did not provide specific evidence
which demonstrated that the medical treatment that he sought was the
result of the discriminatory non-selections and not because of five
additional lawsuits in which complainant was involved. The AJ also denied
complainant's request for non-pecuniary compensatory damages. The AJ
determined that complainant's claim that he suffered from depression
was not credible, as he had failed to report it during discovery and
had failed to amend his responses after he claims to have discovered
the diagnosis. The AJ found that complainant did not present sufficient
evidence to prove what portion, if any, of the stress he suffered was
caused by the discriminatory non-selection.
Additionally, the AJ found that complainant was not entitled to
attorney's fees, as he had appeared pro se at every stage of the EEO
process, including the hearing. Complainant's request for costs were
also denied because, although he testified that he incurred a variety
of out of pocket losses, including rental car and travel expenses,
lodging, printing and copying costs, he failed to provide receipts or
other supporting documents.
The AJ ordered the following remedial action: placement in the position;
back pay with interest;5 and witness fees. The AJ also ordered the
agency to take steps to ensure that discriminatory actions would not
recur, including providing training to all of those involved.
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that he was subjected to discrimination as
alleged.
CONTENTIONS ON APPEAL
On appeal the agency contends that the AJ erred (1) in finding that
the agency failed to meet its burden of production; (2) in not ruling
on the agency's Motion for Summary Judgment because the record showed
the complainant did not establish a prima facie case of discrimination
or pretext; and (3) in ordering that the agency offer complainant
an Immigration Judge position because the applicants hired possessed
measurably better qualifications than complainant. In the alternative,
the agency argues that complainant should not be placed in the position,
but instead should be allowed to interview for the position which is
where he would have been absent the discrimination.
Complainant maintains that the AJ's finding of discrimination should be
affirmed because the agency failed to provide adequate evidence so that
he could show that their reasons were pretext. Complainant also argues
that the AJ's Order to place him in the Immigration Judge position should
be affirmed. Finally, complainant contends that the AJ erred when he
failed to award compensatory damages.
ANALYSIS AND FINDINGS
Decision Without A Hearing
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. Id.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given: (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
The Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
In the instant case, we find that no genuine issues of material
fact exist, and that the AJ properly set forth the material facts.
Complainant applied for the position, was qualified for the position,
but did not get the position. Moreover, the record shows that the agency
failed to set forth, with sufficient clarity so that complainant could
respond, the reasons why he was not offered an interview and ultimately
not selected. The record also reveals that the AJ gave both parties
notice that he was going to issue sua sponte a summary judgment decision
in complainant's favor. He advised both parties to submit briefs and
instructed the agency to provide documentation that was missing from
the record. The agency failed to provide all of the ordered materials.
Accordingly, we find that the issuance of summary judgment was appropriate
and both parties were given proper notice regarding the issuance of the
summary judgment.
Further, applying the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
we find that the AJ properly determined that discrimination occurred.
Initially, complainant must establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Here, complainant demonstrated
that he is a member of a protected class based on his national origin
and sex. He was subjected to an adverse employment action when he was
not selected for any of the positions at issue. And, he was treated
less favorably than others outside of his protected class because the
selectees, all of whom were not of complainant's national origin and all
but one of whom were female, were offered an interview and ultimately
hired while he was not.
Next we turn to the AJ's finding that the agency failed to carry its
burden to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). The agency indicated that complainant was not
selected for an interview because the selectees were "more qualified"
for the position than complainant was, and the CIJ indicated that
complainant did not receive enough "highly recommended" votes to garner
an interview, and as such, was ultimately not selected for the position.
The Commission is cognizant that the agency's burden to articulate a
legitimate non-discriminatory reason for its actions is not an onerous
one. However, as the AJ found, the agency in the present case failed to
set forth, with sufficient clarity, reasons for complainant's nonselection
such that he has been given a full and fair opportunity to demonstrate
that those reasons are pretext. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 258 (1981); see Parker v. United States
Postal Service, EEOC Request No. 05900110 (April 30, 1990): Lorenzo
v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997).
The CIJ merely stated the process for selection and his own reason for
rating complainant as he did. Accordingly, we find that the issuance
of summary judgment was appropriate and both parties were given proper
notice regarding the issuance of the summary judgment.
There must be some evidentiary proof to support this conclusory
statement. Moreover, the agency failed to provide the other Supervisory
Judges reasons for rating complainant as they did, and as the AJ noted,
the CIJ was only one of at least 8 panel members, rating complainant
and his reason did not carry greater weight than the other members
of the selection panel. We note that, while an agency can choose the
selectee it wishes, it must clearly set forth its reasons in order to
afford complainant the opportunity to demonstrate that its articulated
reasons for choosing the selectee was a pretext for discrimination.
We agree with the AJ's finding in this case that the agency failed to
do so. Therefore, we, like the AJ, conclude that the lack of specificity
as to why the agency chose the selectees instead of complainant makes
it impossible for complainant to prove the reasons for not selecting
him were a pretext for discrimination. 6 For the foregoing reasons,
we affirm the AJ's finding of national origin and sex discrimination.
Award of Relief
We shall now discuss complainant's entitlement to remedial relief.
As the Commission has affirmed the AJ's finding of discrimination,
complainant should be placed in the position and awarded back pay with
interest and the rights thereto. Regarding complainant's contentions
of entitlement to compensatory damages, the record shows that a hearing
was held regarding this matter, and for the reasons set forth below,
we find complainant is entitled to compensatory damages.
A. Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. � 1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC Notice
No. 915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992) (Enforcement Guidance).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. Id. at 11-12, 14; Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded
should reflect the extent to which the agency's discriminatory action
directly or proximately caused harm to the complainant and the extent to
which other factors may have played a part. EEOC Notice No. N 915.002
at 11-12. The amount of non-pecuniary damages should also reflect the
nature and severity of the harm to the complainant, and the duration or
expected duration of the harm. Id. at 14.
In Carle v. Department of the Navy, the Commission explained that
"objective evidence" of non-pecuniary damages could include a
statement by the complainant explaining how he or she was affected
by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993).
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could
also submit documentation of medical or psychiatric treatment related to
the effects of the discrimination. Id. Non-pecuniary damages must be
limited to the sums necessary to compensate the injured party for the
actual harm and should take into account the severity of the harm and
the length of the time the injured party has suffered from the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995).
B. Nexus between Alleged Harm and Discrimination
1. Pecuniary
The amount to be awarded for past pecuniary losses can be determined
by receipts, records, bills, cancelled checks, confirmation by other
individuals, or other proof of actual losses and expenses. Enforcement
Guidance. Upon review, the Commission agrees with the AJ's finding that
complainant failed to establish that he was entitled to pecuniary damages
as a result of the agency's discriminatory action. While complainant
indicated that he experienced economic harm because of the agency's
discriminatory conduct, he did not provide the AJ with any evidence to
support his contentions. Accordingly, we find that complainant is not
entitled to pecuniary damages.
2. Non-pecuniary
Complainant alleged that he was treated for work related stress between
August 7, 2002, and December 2006. Complainant also maintained that
he suffered depression and was angry all of the time which adversely
impacted his relationship with his wife. Complainant testified that he
became withdrawn and spent less time doing activities with his wife and
that they were less intimate. He also testified that he became estranged
from his family and ceased communicating with his siblings unless his
wife directed him to do so. He indicated that his sleep was adversely
affected and that he had been treated at an emergency room for heart
palpitations during 2004.
The Commission finds, contrary to the AJ's decision which denied
non-pecuniary damages, that complainant has established a nexus between
the alleged harm and discrimination. While it appears that complainant
suffered work stress prior to the subject nonselections, complainant's
testimony reveals that he was affected by the agency's discriminatory
conduct in the present case.
Specifically, we find that, given that the agency's discrimination
resulted in a severe consequence, namely a non-selection, it is reasonable
to infer that complainant's testimony that he suffered emotional distress,
and that the discrimination had a detrimental effect on his medical state,
is accurate. See Yeats v. U.S. Postal Service, EEOC Appeal No. 01973250
(March 11, 1999). Moreover, a damage award can be based on evidence
consisting of complainant's statement explaining the effects of the
discrimination and/or statements from others addressing the outward
manifestations of the impact of the discrimination on complainant. See
Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995).
Here, despite evidence of contributing factors to complainant's emotion
distress, to include the EEO processing, and some situations in his
personal life, we find that complainant provided sufficient testimony
and a sworn statement indicating that he suffered emotionally as a direct
consequence of the agency's discrimination.
A proper award of compensatory damages must meet two goals: it must not
be "monstrously excessive;" and it should be consistent with awards in
similar cases. See Jackson & Beaneer v. U.S. Postal Service, EEOC Appeal
Nos. 01972555 & 01972556 (April 15, 1999). In this case, we find that an
award of $20,000.00 satisfies these goals and is proper. Specifically,
we find that, despite record evidence showing that much of the emotional
distress for which complainant was treated was associated with situational
work stress, there is nonetheless also evidence of record to show that he
suffered a significant degree of emotional distress as a consequence of
the discriminatory actions of the agency in the present case. There is
also sufficient evidence to show that this emotional distress, and
other harm, is comparable to that described in other Commission cases.
In Flowers v. United States Postal Service, EEOC Appeal No. 01A43114
(October 7, 2004), EEOC Request No. 05A50243 (January 11, 2005),
the Commission awarded $20,000 in compensatory damages upon a showing
that, despite other contributing factors, the agency's disability-based
discriminatory failure to hire complainant resulted in sleeplessness,
depression, emotional distress, anxiety, loss of enjoyment of life and
strained family relationships. In Farrell v. Department of the Treasury,
EEOC Appeal No. 07A20043 (May 5, 2003), the Commission awarded $20,000 in
non-pecuniary compensatory damages where a discriminatory non-selection
occurred. There, the award was based on testimony from complainant
and his family as to emotional distress, insomnia, anxiety, stress,
depression, marital strain, humiliation, loss of self-esteem, mental
anguish, loss of enjoyment of life, and injury to relations with family.
In Minardi v. United States Postal Service, EEOC Appeal No. 01981955
(October 3, 2000), another discriminatory non-selection, despite evidence
of contributing factors, the Commission awarded $20,000 in compensatory
damages upon evidence that complainant experienced headaches, insomnia,
difficulty concentrating, irritability, depression, panic attacks,
loss of self-esteem, tension, loss of reputation and loss of enjoyment
of life, as corroborated by friends and a physician statement. Finally,
in Randle-Harris v. United States Postal Service, EEOC Appeal No. 01A04769
(March 6, 2001), EEOC Request No. 05A10468 (June 19, 2001), the Commission
awarded $15,000 in compensatory damages with evidence showing that the
discrimination interfered with the complainant's relationships of both
friends and family, and that complainant experienced a worsening of
sickle cell anemia and depression after a disability-based termination.
Based on the foregoing factors, we modify the AJ's decision and award
complainant $20,000.00 in non-pecuniary compensatory damages.
C. Attorney's Fees and Costs
Pursuant to 29 C. F.R. � 1614.501(e)(1)(iii), attorneys fees are
allowable only for the services of members of the Bar and law clerks,
paralegals or law students under the supervision of members of the Bar,
except that no award is allowable for the services of any employee of
the Federal Government.
Accordingly, the Commission agrees with the AJ's finding that complainant
is not entitled to attorney's fees. We find that complainant, an employee
of the Federal Government, acted pro se throughout the proceedings.
Further, we agree that complainant has not provided evidence to support
his claim for costs. Therefore, we affirm the AJ's decision with respect
to the denial of attorney's fees and costs.
CONCLUSION
Based on a thorough review of the record and contentions on appeal,
including those not specifically addressed herein, we find that there
are no material issues in dispute, and the record supports the AJ's
finding of discrimination. We modify the AJ's finding with regard to
compensatory damages, but affirm the AJ's decision with respect to
attorney's fees and costs. Accordingly, the agency's final notice is
reversed. The case is remanded to the agency to take remedial action
in accordance with this decision and the Order below.
ORDER
To the extent that it has not already done so, the agency is ordered to
take the following action:
1. The agency shall place complainant in the position he would have
occupied absent the discrimination, or a substantially equivalent position
if the original position no longer exists. The employment offer shall be
made in writing within 30 days from the date this decision becomes final.
Complainant shall have 15 days from receipt of the offer within which
to accept or decline the offer. Failure to accept the offer within
the 15 day period will be considered a decline of the offer, unless
complainant can show that circumstances beyond his control prevented a
response within the time limit.
2. If the offer is accepted, appointment shall be retroactive
to the date complainant would have been hired. Back pay, computed in
the manner prescribed by 5 C.F.R. � 550.805, shall be awarded from the
date complainant would have entered on duty until the date complainant
actually enters on duty. Interest on back pay shall be included in the
back pay computation. The complainant shall be deemed to have performed
service for the agency during this period for all purposes except for
meeting service requirements for completion of a required probationary
or trial period.
3. If the offer of employment is declined, the agency shall award
complainant a sum equal to the back pay he would have received, computed
in the manner prescribed by 5 C.F.R. � 550.805, from the date he would
have been appointed until the date the offer was declined. The agency
shall inform complainant, in its offer of employment, of the right to
this award in the event the offer is declined.
4. Within sixty (60) calendar days of the date this decision becomes
final, the agency must pay to complainant $20,000.00 in non-pecuniary
compensatory damages.
5. The agency shall immediately take corrective actions to ensure
such discriminatory actions by and from its supervisors, managers, and all
other staff involved in decisions affecting employment, will not recur,
including providing mandatory training on the rights of employees and
applicants for employment under Title VII, the obligations of management
and personnel staff to insure that those rights are protected, and the
possible relief (both disciplinary by the agency and statutorily from the
Commission or the courts) available to such employees against management
or personnel staff who discriminate.
6. The agency shall post the enclosed notice. See Posting Order,
infra.
7. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report its
decision to the EEOC 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
provide documentation of their departure date(s).
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 the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Department of Justice, Executive
Office for Immigration Review, Office of the Immigration Judge (EOIR),
5107 Leesburg Pike, Suite 2545, Falls Church, VA 22041 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.
ATTORNEY'S FEES (H0900)
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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
09-24-08
__________________
Date
1 It is unclear how many Supervisory Judges actually reviewed the
applications. The agency maintains that it was either eight or as high
as twelve.
2 The individual vote sheets of each Supervisor Judge were discarded.
3 The CIJ indicated that, for the Chicago position, 18 candidates
received a higher number of "highly recommended for interview" votes
than complainant; for the York position, 16 candidates received a higher
number of "highly recommended for interview" votes than complainant;
and for the New York position, 15 candidates received a higher number of
"highly recommended for interview" votes than complainant.
4 The CIJ explained that complainant received a rating of recommended
based on his approximate 6 years of experience as a trial attorney for
DHS which demonstrated his knowledge of Immigration Law and relevant
procedure, litigation experience, experience in handling complex
issues and knowledge of judicial practice and procedure. Complainant's
experience in the military, the Department of Transportation, and the
Legal Aid Society was also considered. The CIJ maintained that, although
complainant's application demonstrated a total of 14 years of experience,
only 6 years were highly relevant to the position of Immigration Judge.
Finally, the CIJ indicated that complainant's application did not merit
a rating of highly recommended for interview purposes based on his years
of experience and the quality of that experience.
5 If complainant declined the position then back pay would be awarded
until the offer was declined.
6 The record shows that many attempts were made to get the agency to
provide materials related to the selections.
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0720080012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720080012