Jose Bermea, Complainant,v.Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionOct 16, 2003
07A20099 (E.E.O.C. Oct. 16, 2003)

07A20099

10-16-2003

Jose Bermea, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.


Jose Bermea v. Department of Health and Human Services

07A20099

October 16, 2003

.

Jose Bermea,

Complainant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 07A20099

Agency No. SAM-02-00

Hearing No. 120-A1-4385X

DECISION

Following its June 20, 2000 final order, the agency filed a timely appeal

which the Commission accepts pursuant to 29 C.F.R. � 1614.405. On appeal,

the agency requests that the Commission affirm its rejection of an EEOC

Administrative Judge's (AJ) finding that the agency discriminated against

complainant on the basis of his age (57 years old). For the following

reasons, the Commission reverses the agency's final order.

Complainant, an applicant for employment at the agency's Substance Abuse

and Mental Health Services Administration facility, filed a formal EEO

complaint with the agency on June 27, 2000, alleging that the agency had

discriminated against him on the bases of national origin (Hispanic)

and age (57 years old) when he was not selected for the position of

Public Affairs Specialist GS-1035-13 in December 1999.

At the conclusion of the investigation, complainant was provided a copy

of the investigative report and requested a hearing before an AJ.

Following a hearing, the AJ found that complainant established a prima

facie case of discrimination based on age because complainant was over 57

years old at the time of the selection, the selecting official (S/O) was

aware of his age and that of the selectee; complainant was not selected

and the selectee was substantially younger than complainant. The AJ

further found that the agency articulated legitimate, nondiscriminatory

reasons for not selecting complainant stating that he was "overqualified"

and not a good fit for the position because he was likely to be

dissatisfied and resentful in a low level job. The agency also stated

that selecting complainant would likely result in his poor performance

because it was at a low level job. S/O complained that complainant

represented he only wanted a government job and showed no enthusiasm

for the position or the subject matter being promoted in their program.

After considering the agency's reasons for not selecting complainant,

the AJ reached the conclusion that the reasons were a pretext for

discrimination. In his decision, the AJ found that complainant's

qualifications were plainly superior to those of the selectee because

of his experience and the fact that he had managed three extensive and

successful national media campaigns. In comparison, the selectee had

never run a national public affairs campaign and had only dealt with

localized clients not a regional or nationally oriented clientele.

The AJ found that complainant had far more experience in public affairs

at a higher level of achievement and had more accomplishments in Spanish

media and public relations.

The AJ further concluded that S/O was not credible, had a poor memory for

details, gave contradictory testimony and his reasons for not selecting

complainant could not be believed. As an example of S/O's contradictory

testimony, the AJ pointed to S/O's contention that the job was more

mundane and did not require experience in national media campaigns

whereas the vacancy announcement specifically called for the ability

to run a national media campaign. The AJ also found that where there

should have been corroborating testimony to support S/O's statements

either no evidence existed or it was not offered. Specifically, the AJ

found no corroborating testimony for S/O's statement that he and the

other interviewers did not like the fact that complainant engaged in

"name-dropping." Based on these findings and evidence, the AJ concluded

that the agency discriminated against complainant on the basis of his age.

As a remedy the AJ ordered retroactive placement into the position,

back pay, an amount representing additional tax liability for a lump

sum back pay award and posting of notice.

The agency's final order rejected the AJ's decision. On appeal,

the agency argues that the AJ erred in concluding that complainant

established that its reasons for not selecting complainant were a pretext

for discrimination. The agency argued that the AJ erred in substituting

his judgment for which candidate was the best qualified for the position

when the law requires that he defer to management's judgment. In the

agency's view, the AJ erred in finding complainant's credentials to be

plainly superior to the selectee because his length of experience did not

necessarily make him more qualified. In addition, the agency contended

that the AJ did not apply the correct standards under the ADEA because

he did not find that "but for" complainant's age, he would have been

selected. The agency contended that the fact that S/O had previously

selected a candidate who was over 60 years old at the time, was proof

that he did not harbor discriminatory motives based on complainant's age.

The agency challenged the AJ's conclusion that S/O was not credible

and could not be believed because it was not supported by the record.

For example, the agency argued that S/O's reliance on the selectee's

experience with the Office of Cuban Broadcasting was credible even though

he did not mention it in his affidavit. According to the agency, the

fact that S/O did not mention it before was not significant because he

may have relied on many factors in making his selection that were not

specifically expressed. The agency also claimed that the AJ applied a

double standard to complainant because like S/O, he had testified to

matters not in his affidavit but was found to be largely credible in

his testimony.

Complainant opposed the agency's appeal stating that the AJ applied

the correct standard under the ADEA and was correct in finding that

complainant's qualifications were plainly superior to those of the

selectees. He did not challenge the AJ's finding of no discrimination

based on national origin. Complainant pointed to other evidence in

the record which indicated the S/O's bias against his age, such as the

fact that S/O initially sought unsuccessfully to hire a candidate in his

late 20s before interviewing complainant and the fact that the selectee

was 14 years younger than complainant. Complainant contends there was

evidence to support the AJ's finding that "but for" his age he would have

been selected. Neither party challenged the AJ's calculation of back pay

that he ordered to be paid or other remedies he awarded to complainant.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

The AJ correctly applied the standard of proof in an ADEA case.

To establish a prima facie case of age discrimination, the complainant was

required to show that he was over 40 years of age, that he was subjected

to an adverse employment action, and that he was treated less favorably

than other similarly situated employees younger than himself, i.e.,

he was accorded treatment different from that given to persons who are

considerably younger than he. See Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp.,

517 U.S. 308 (1996); see Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requiring a showing that age was a determinative factor, in the sense

that "but for" age, complainant would not have been subject to the

adverse action at issue). While there is no bright-line test for what

constitutes "substantially younger," that term has generally been applied

to age differences in excess of five years. See Hammersmith v. Social

Security Administration EEOC Appeal No. 01A05922 ( March 6, 2002).

Here, the selectee was 14 years younger than complainant.

Applying these standards to the AJ's findings and conclusions, we conclude

the agency failed to establish an adequate basis to disturb the AJ's

finding of discrimination. The AJ's finding that the agency's reasons

were a pretext for age discrimination is supported by substantial evidence

in the record. That is, the AJ relied on several factors including the

fact that complainant's qualifications were plainly superior to those

of selectee's. Although the agency contends that the AJ substituted

his judgment for what S/O deemed to be important, S/O's testimony that

he thought complainant was "extremely qualified" and "overqualified"

was compelling evidence to support the AJ's conclusion that his

qualifications were plainly superior. The agency does not contest

what complainant's credentials and experience were at the time, but it

urges that the AJ should defer to S/O's preference and his judgment

of the selectee's qualifications. In judging whether the agency's

reasons for preferring one candidate over another was discriminatory,

the AJ correctly evaluated the quality and quantity of the relative

qualifications of the two candidates according to what the agency set

forth in the vacancy announcement.

The agency argues that the AJ improperly judged whether the selectee's

experience working with a local clientele or single versus multiple

clients was sufficient to qualify her to meet the agency's requirements.

We disagree. It was clear that the agency's vacancy announcement

specifically called for the candidate to have "knowledge of certain

methods and techniques of communication in order to design, plan and

execute a public affairs program of major national scope" which the

selectee apparently did not have. A review of the record disclosed

that there was ample support for the AJ's conclusion that complainant

was much more qualified given his experience in national media campaigns.

The agency argues that the record did not contain substantial evidence to

support the AJ's determination that but for complainant's age, he would

have been selected. In his decision, the AJ relied on the fact that

S/O's two selections for the position were candidates much younger than

complainant, including one who was in his 20s and much younger than S/O.

This is sufficient together with the AJ's credibility findings and the

superior nature of complainant's qualifications to support his conclusion

of age discrimination.

Finally, the agency contends that the AJ's credibility findings are

not supported by the record and should be overturned. Our review of

the record indicates substantial support for his credibility findings.

In particular, S/O testified that the job entailed sitting at a computer

and maintaining lists of contacts and faxing documents which he thought

would not suit complainant's extensive experience. The AJ concluded

this was not credible testimony because the agency's vacancy announcement

required the incumbent to be "a liaison between the agency and national,

international and local Spanish language media regarding substance abuse

prevention." The record supported that S/O did not accurately represent

what the agency sought. The AJ also found S/O lacked credibility in

stating that he was concerned complainant would not be happy in the

job and would soon leave whereas he did not question complainant about

his concerns during the interview. He also found S/O did not question

the selectee about similar concerns surrounding her short tenure in

numerous jobs.

We generally defer to the demeanor and credibility findings and other

personal observations of the administrative judge in this case, in view of

the totality of the evidence. Universal Camera Corp. v. National Labor

Relations Board, 340 U.S. 474, 496 (1951) Wrenn v. Gould, 808 F. 2d

493, 499 (6th Cir. 1987); Willis v. Department of Treasury, EEOC Request

No. 05900589 (July 26, 1990). And, as is well illustrated by this case,

credibility determinations in Title VII actions are of great assistance

and thus warrant more deference than other findings of fact. See Wrenn

v. Gould, 808 F.2d at 499; Embree v. Department of Veterans Affairs,

EEOC Request No. 05901054 (November 15, 1990).

While we generally agree with the AJ's Order for remedies for the

discriminatory conduct, we remand the issue of back pay and additional

tax liability for more complete calculations. The Commission notes that

the AJ calculated back pay but it is not apparent whether appropriate

deductions were made for federal, state and employment taxes from these

amounts as required under 5 C.F.R.�550.805. Therefore, as is our custom,

we remand the issue of back pay to the agency to perform the calculations.

In addition, the Commission has held that make whole relief under the

ADEA can include an award for the tax consequences of receiving back

and front pay all in one year rather than income being earned over

time. Goetz v. Department of the Navy EEOC Appeal No. 01991530 (August

15, 2001) citing O'Neill v. Sears Roebuck and Co. 108 F. Supp.2d 443,

446-7 (E.D. Penn. 2000). The Commission has relied on the court's

reasoning in O'Neill that the goal of the ADEA is to allow a plaintiff

to keep the same amount of money he would have earned had he not been

unlawfully terminated. See also Sears v. Atchison, Topeka & Santa Fe

Railway, Co., 749 F.2d 1451, 1456 (1984). Because the additional tax

liability depends on the amount of the back pay finally calculated,

this issue is returned to the AJ for a final determination.

Therefore, after a careful review of the record, including arguments

and evidence not specifically discussed in this decision, the Commission

reverses the agency's final order and remands the matter to the agency

to take corrective action in accordance with this decision and the

Order below.

ORDER (D0403)

1. The agency will offer complainant the position of Public Affairs

Specialist GS-13 retroactive to December 8, 1999 or a substantially

equivalent position, within 30 days of the date this order becomes final.

The agency shall determine the appropriate amount of back pay, and other

benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no later than

sixty (60) calendar days after the date this decision becomes final.

The complainant shall cooperate in the agency's efforts to compute

the amount of back pay and benefits due, 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 the complainant for the undisputed amount within sixty (60) calendar

days of the date the agency determines the amount it believes to be due.

The complainant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer, at the address referenced in the

statement entitled "Implementation of the Commission's Decision."

2. The issue of compensation for the increased tax liability as a

result of the lump sum back pay award is REMANDED to the Hearings Unit

of the Baltimore District Office to determine the amount of increased

tax liability, if any, arising from the agency's calculation of back

pay amounts in No. 1 above. Thereafter, the AJ shall issue a decision

on this issue in accordance with 29 C.F.R. � 1614.109 and the agency

shall issue a final action in accordance with 29 C.F.R. �1614.110.

The burden of proof to establish the amount of additional tax liability

is on the complainant. The calculation of additional tax liability must

be based on the taxes the complainant would have paid had he received

the back pay in the form of regular salary during the back pay period,

versus the additional taxes he paid due to receiving the back pay lump

sum awards in the year paid.

3. The agency will require the selecting official S/O to take 8 hours

of training in the provisions of the ADEA.

4. The agency will consider taking disciplinary action against the

selecting official identified as being responsible for discriminating

against complainant. The agency shall report its decision. 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.

5. The agency will post notice as directed below.

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 backpay 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 Office of Administration, Office of

Communication, Substance Abuse and Mental Health Services Administration,

Rockville, Maryland 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (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

October 16, 2003

__________________

Date