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