07A20073
03-19-2003
Octove Livaudais, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Octove Livaudais v. Department of Agriculture
07A20073
March 19, 2003
.
Octove Livaudais,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 07A20073
Agency No. 000030
Hearing No. 270-A0-9224X
DECISION
Following its March 15, 2002 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 bases of age (over 40 years old) and sex (male).
The agency also requests that the Commission affirm its rejection of
the AJ's order to retroactively promote complainant to the position of
Paralegal Specialist, GS-9, award back pay to complainant, and take
curative and preventative actions to ensure that discrimination does
not recur. For the following reasons, the Commission REVERSES the
agency's final order.
Complainant, a Contact Representative in the Thrift Savings Plan Service
Office of the Thrift Savings Plan Division at the National Finance Center
in New Orleans, filed a formal EEO complaint with the agency on August
26, 1999, alleging that the agency had discriminated against him on the
bases of sex and age when on May 14, 1999, it failed to select him for
a Paralegal Specialist position, GS-9, at the National Finance Center.
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 issued a decision on January 25, 2002.
The AJ found that complainant established a prima facie case of sex and
age discrimination because he established that he was a male over 40
years of age who applied and was qualified for the position in question,
but was not selected in favor of five females candidates who were all
significantly younger.
Further, the AJ rejected the legitimate, nondiscriminatory reasons
offered by the agency for its actions. The agency stated that it did
not select complainant because he failed to respond in writing to the
Knowledge, Skills, and Abilities (KSA) portion of the announcement, that
he failed to articulate any relevant legal experience in the interview,
and because he had no �hands on� experience processing court orders.
However, the AJ concluded that although the application stated that KSA
responses were required, the application allowed applicants to elect to
either address the criteria separately or within their application.
The AJ found that complainant addressed the criteria within his
application package by providing a resum�, his law school transcript,
and his license to practice law. The AJ then concluded that the agency's
purported emphasis on experience and court orders was �highly suspect,�
since two of the selectees had no experience drafting or processing
court orders. The AJ determined that two of the selectees had some legal
training and at least three had significant legal work experience. The AJ
found that the educational qualifications specified in the announcement
and possessed by complainant, coupled with the two selectees' lack of
legal education and minimum legal experience made suspect the agency's
reasoning for not selecting complainant. The AJ noted that during the
hearing, the agency failed to rebut the fact that one selectee (S1)
had neither any legal education nor substantial experience drafting,
analyzing, or reviewing court orders beyond clerical responsibilities.
Further explaining her disbelief of the agency's explanation and her
belief that discrimination motivated complainant's non-selection,
the AJ noted that the vacancy announcement stated that education may
be substituted for experience, and that in order to qualify for a
GS-9 appointment, an applicant must possess a year of experience at
the GS-7 level or equivalent in the private industry or must possess
a Juris Doctor degree. The AJ concluded that because he possessed a
law degree, complainant not only exceeded the educational requirement,
but his experience as a Vice-President at a private corporation gave
him private sector experience which exceeded the GS-7 level requirement
for equivalent private industry experience. The AJ found that the agency
subjected complainant to unlawful discrimination on the bases of sex and
age and ordered the agency to retroactively place him in the position
of Paralegal Specialist and award him back pay.
The agency's final order declined to implement the AJ's decision finding
discrimination and order of relief.
On appeal, the agency contends that the AJ misapplied Supreme Court
authority because no evidence of discriminatory animus toward
complainant's protected groups was presented. The agency further
maintains that the record is devoid of any evidence that could lead one to
conclude that the reasons proferred by the agency for the non-selection
were false or inaccurate. Further, the agency contends that complainant
failed to provide sufficient information about his knowledge, skills,
and ability to perform the job of a paralegal in his resum�. The agency
pointed out that one of the selectees (S1) cited by the AJ as less
qualified than complainant possessed a college degree and worked in
the Legal Review Evaluation Unit for approximately five years and
the other selectee (S2) had worked as a paralegal in a law office for
approximately two years, had a college degree, and attended law school
for one year. The agency contends that by finding that two selectees
were less qualified than complainant, the AJ impermissibly substituted
her judgment for that of the agency's selecting officials. Finally,
the agency also maintains that complainant did not qualify for the GS-9
level Paralegal Specialist position under the Merit Promotion Plan because
he was only a GS-6 employee. In response, complainant contends that the
AJ's decision correctly summarized the facts and reached the appropriate
conclusions of law.
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.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws.
Regarding the agency's argument that complainant failed to provide
sufficient information about his knowledge, skills, and ability to
perform the job of a paralegal in his resum� and application package,
we note that complainant submitted a very detailed resum� that stated
that he received a Juris Doctor, was proficient in legal research,
and had work experience as a Contact Representative with the National
Finance Center, which included writing interpretations of court orders
pertaining to the Thrift Savings Plan. Complainant also submitted his
law school transcript as part of his application package. Upon review
of the record, we determine that this was sufficient information for the
agency to determine complainant's ability to perform in the position of
Paralegal Specialist.
Also, we note that the agency contends that complainant was not eligible
for a GS-9 paralegal position because he was only a GS-6 employee.
However, the record contains a copy of an Office of Personnel Management
(OPM) notice dated December 7, 1998, that stated that complainant
was eligible for a GS-9 Paralegal Specialist position. Further, the
Vacancy Announcement for the position states that a Juris Doctor degree
is sufficient to qualify an applicant for a GS-9 Paralegal Specialist
position. Consequently, we conclude that the AJ properly concluded that
complainant was eligible for a GS-9 Paralegal Specialist position.<1>
Further, we determine that the AJ's finding that complainant possessed
superior qualifications to at least two of the selectees is supported
by testimonial and documentary evidence. Specifically, we note that
while one of the selectees (S2) attended law school for one year,
she was not accredited with any hours and lacked any other form of
legal education. Moreover, we note that the agency challenges the AJ's
conclusion that complainant was more qualified than another selectee
(S1) because that particular selectee's application revealed that she
�previewed and composed letters pertaining to court orders� in the Legal
Review Evaluation Unit. However, we agree with the AJ's conclusion
that previewing and composing letters pertaining to court orders is an
attendant clerical duty to processing court orders and is very distinct
from the analytical skills required to evaluate court orders, as stated
in the position description for a Paralegal Specialist. In contrast,
complainant's resum� reveals that he possessed a Juris Doctor and
law license, as well as had experience as a Contact Representative
interpreting and writing on all aspects of the Thrift Savings Plan,
including court orders. Therefore, we conclude that complainant possessed
superior qualifications to at least two selectees for the position of
Paralegal Specialist.
In Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000),
a unanimous Supreme Court held that evidence showing that the employer
presented a false reason for a challenged action is sufficient in most
cases to support a finding of discrimination. The Court acknowledged
that in some cases disproving the employer's explanation may not
be sufficient to permit a finding of discrimination. As an example,
the Court stated that a complainant might have "created only a weak
issue of fact as to whether the employer's asserted reason was untrue
and there was abundant, uncontroverted independent evidence that no
discrimination had occurred." Id. at 2109. In this case, we find that
complainant created a strong issue of fact concerning the falsity of
the agency's explanation because the record reveals that complainant
provided sufficient KSA information and had superior qualifications
than two selectees. We therefore find that there is not abundant,
uncontroverted evidence that no sex or age discrimination occurred. We
also determine that the agency's argument that it has broad discretion
in making selection decisions and should not be second-guessed has no
relevance in the case at hand because this broad discretion is granted
only when candidates are equally qualified and when there is no evidence
of unlawful motivation. See Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 252 (1981); Fodale v. Department of Health and
Human Services, EEOC Request No. 05960344 (October 16, 1998). Here,
the AJ properly found that complainant has superior qualifications
than at least two of the selectees. The agency contends that the AJ
misinterpreted Supreme Court authority because she failed to prove that
the non-selection was motivated by discriminatory animus. Having found
that the agency's proffered nondiscriminatory explanation was false,
we find that the AJ properly concluded that the agency's failure to
select complainant was motivated by discriminatory animus. Accordingly,
we discern no basis to disturb the Administrative Judge's finding of
discrimination and order of relief.<2>
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. The agency is liable for violating
both Title VII and the ADEA. The Commission directs the agency to take
corrective action in accordance with this decision and the Order below.
ORDER
The agency is ordered to undertake the following remedial action:
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall promote complainant to the position of Paralegal
Specialist, GS-950-09;
Pursuant to 29 C.F.R. � 1614.501 and no later than sixty (60) calendar
days after the date this decision becomes final, the agency shall
determine the appropriate amount of back pay, interest, and other
benefits due complainant from May 23, 1999 through the date complainant
is promoted to the position of Paralegal Specialist, GS-950-09.
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 complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
Complainant may petition the Commission for clarification or enforcement
of the amount he believes to be due. Complainant must file the petition
for clarification or enforcement with the Compliance Officer, at the
address referenced in the statement entitled �Implementation of the
Commission's Decision.�
The agency shall take corrective, curative, and preventative action to
ensure that sex-based and age-based discrimination does not recur,
including but not limited to providing training to all management
officials at the National Finance Center in New Orleans, Louisiana in
their duties and obligations under Title VII and the ADEA.
POSTING ORDER (G0900)
The agency is ordered to post at its New Orleans, Louisiana 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.<3>
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.
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
__March 19, 2003________________
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 ADEA and Title VII has occurred at the agency's New
Orleans, Louisiana facility (hereinafter this facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have discriminated against an employee when he
was not selected for the position of Paralegal Specialist. The facility
was ordered to place the employee into the Paralegal Specialist position
with back pay, interest, and other benefits due. This facility 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.
This facility will comply with federal law and 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 16141We note that on appeal, the agency submits a copy of
revisions of the OPM Time-in-Grade Restrictions made effective January 1,
2001 in support of its claim that complainant was ineligible for a GS-9
position. However, we determine that the relevant OPM restrictions were
those in place during the time of the selection in May 1999.
2The record reveals that complainant requested placement into the
Paralegal Specialist position as a the only remedy desired for
his discrimination claim and did not request compensatory damages.
Nevertheless, we note that while compensatory damages are part of �make
whole relief� for violations of Title VII, compensatory damages are
unavailable under the ADEA.
3Under Title VII and the Rehabilitation Act, a successful complainant
may recover attorney fees in the administrative process from the agency.
There is no similar provision for attorney fees under the ADEA.