Ramiro Tellez, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
05a41133 (E.E.O.C. Mar. 18, 2005)

05a41133

03-18-2005

Ramiro Tellez, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Ramiro Tellez v. Department of the Army

05A41133

March 18, 2005

.

Ramiro Tellez,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Request No. 05A41133

Appeal No. 01A40009

Agency Nos. AVBWFO0112B0530 & AVBWFO0105B0240

Hearing No. 350-A1-8376X

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

EEOC regulations provide that the Commissioners may, in their discretion,

reconsider any previous Commission decision. 29 C.F.R. � 1614.405(b).

Reconsideration may be granted when there is written argument or

evidence which tends to establish that the appellate decision involved

a clearly erroneous interpretation of material fact or law and/or the

decision will have a substantial impact on the policies, practices or

operations of the agency. Id. For the reasons set forth herein, the

Commission reconsiders the decision in Ramiro Tellez v. Department of

the Army, EEOC Appeal No. 01A40009 (May 26, 2004) on its own motion.

The appellate decision is hereby vacated.

BACKGROUND

Complainant was employed as a GS-13 Missile Engineer in the Materiel Test

Directorate (MT) at White Sands Missile Range (WSMR). He submitted a

resume and supplemental data sheet to WSMR's Civilian Personnel Office,

for future vacancies in the Engineering occupational series at various

geographic locations, through an automated system called �Resumix.�

In July 2000 and February 2001, the Personnel Office compiled Resumix

referral lists for two GS-14 Supervisory General Engineer vacancies,

identified as BW00719 and BW95111, and one GS-14 Supervisory General

Engineer vacancy, identified as BW01012, respectively. Effective July 30,

2000, the Director of MT (SO1) selected a 41-year old, Caucasian male

(C1) for BW00719 and a 52-year old, Hispanic male (C2) for BW95111.

In addition, effective April 8, 2001, the Director of the Systems Test

and Assessment Directorate (SO2) selected a 38-year old, Caucasian

male (C3) for BW01012. Believing he was a victim of discrimination,

complainant sought EEO counseling and subsequently filed two formal EEO

complaints alleging that the agency discriminated against him on the

bases of national origin (Hispanic), age (59 years old) and reprisal

for prior EEO activity<1> when it failed to select him for a GS-14,

Supervisory General Engineer position.

SO1 stated that he reviewed 18 resumes for BW00719 and 19 resumes for

BW95111. He stated that he compared the resumes based on a criteria

consisting of (1) knowledge of testing, (2) experience in test programs,

(3) breadth of experience in WSMR, (4) supervisory experience, and (5)

persona, presence and communication; and assigned ratings based on said

criteria.<2> He indicated that he reduced the number of candidates to 7

for BW00719 and 8 for BW95111 and then re-reviewed the candidates, which

resulted in four top candidates. He added that he interviewed three of

the top four candidates<3> and then reduced the pool to those interviewed.

SO1 stated that he presented the top three candidates to the Board of

Directors (Board) for concurrence and ultimately selected C1 and C2.

Specifically, SO1 stated that he selected C1 because of the experience

and skills he possessed due to his tenure as a Project Engineer for

the largest and most challenging program at WSMR. SO1 stated that he

selected C2 due to his more eclectic experience in test and evaluation

and his national prominence as an Engineer for MT.

Further, in explaining how BW00719 and BW95111 were filled, SO1 stated

that, in early 2000, the WSMR Commander, Technical Director (SO3<4>)

and Mission Directors decided that a Board of Directors would make the

selections for any GS-14 and higher positions. SO1 added that the purpose

of the decision was to plan for the future of the agency by promoting

people into positions in which they could take a leadership role in the

future, as most of the agency's senior management was retirement-eligible.

In discussing the selection criteria used, SO1 stated further that

�the decision by the directors, at that time a year ago, was that the

14 positions would be people that we expected could serve as directors

in the future, sort of a succession planning concept.� SO1 stated that

his supervisor approved the selection of C1 and C2.

SO2 stated that he reviewed 27 resumes for BW01012, at which time he

considered each candidate's ability to manage a large and complex

organization, to represent the organization with the WSMR General

and other senior management, to manage an organization financially

and personnel-wise, and to communicate effectively in large, complex

briefings. In addition, SO2 stated that he considered the candidates'

engineering experience. SO2 indicated that, based on his review, there

were five to six people in contention and he made a selection based on

his personal knowledge of each candidate's work history at the facility.

SO2 noted that he did not conduct interviews for the vacancy. SO2 stated

that he selected C3 but acknowledged that he does not have documentation

to support his selection. SO2 added that he received concurrence from

the Board and approval from his supervisor for his selection.

SO3 stated that there were management and employee discussions regarding

the aging workforce at WSMR and gaps in technology knowledge and the need

to bring in new employees. He acknowledged that he told all directors,

�[I]t's not an issue of promoting younger blood. It is an issue of

getting younger blood into the organization primarily at the entry level,

to fill the voids that were being left by people who were retiring.� SO3

stated that he never spoke of the policy in reference to complainant.

In addition, he stated that the Commanding General directed the Board to

make selections and he issued the directive on the Commanding General's

behalf. He stated that the Board's purpose was to serve as a �sanity

check� to confirm that the agency followed EEO policies and that there

were no impediments to the candidate selected.

At the conclusion of the complaints' investigations, complainant requested

a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated

the two complaints for processing and conducted a hearing on the matters.

The complainant, representatives<5>, witnesses and court reporter were

located at WSMR in New Mexico and the AJ was located in San Antonio,

Texas.

During the hearing, a former Division Chief (DC1)<6> testified that SO2

was his immediate supervisor in 1999 and 2000 and, in said position, he

espoused a policy of hiring and promoting �younger blood.� DC1 testified,

�[SO2] encouraged me and at some points pressured me into using that

criterion, especially as relates to promotion and giving assignments

. . . in the area of software engineering.� As an example, DC1 explained

that he was the selecting official for a GS-14 vacancy until SO2 withdrew

selecting authority from him, stating that he and SO3 decided to form a

Board of Directors to make selections. DC1 asserted that SO2's concern

with his selection was age-related and that SO2 maintained that the Board

would further the objective of hiring �younger blood.� Through testimony,

several other managers corroborated DC1's assertion that the agency

sought to hire �younger blood,� however, those managers stated further

that the practice did not apply to promotions. Also at the hearing,

DC1 submitted excerpts from an October 2000 fact-finding conference for

his EEO complaint. The excerpts are from the investigative statements

of SO2 and SO3. In an excerpt, SO2 stated �I have made statements that

[WSMR] needs younger employees, absolutely. . . . It's going to

take younger people to come in here to learn and grow.� In another

excerpt, SO3 stated that the agency is attempting to develop programs

to hire youth to address the exodus of retirement-eligible employees.

He asserted that those in younger age groups are smarter and more

technologically savvy than those in older age groups. He added that

younger employees are needed for the future to replace the aging

workforce.

After complainant's witnesses were examined at the hearing, the agency

�waived� the right to call the involved responsible management officials,

SO1 and SO2. The agency reasoned that their statements were already in

the record.

Following the hearing, the AJ issued a decision finding no discrimination.

Specifically, the AJ found that complainant established a prima facie

case of discrimination based on national origin, age, and retaliation but

failed to show that the legitimate, nondiscriminatory reasons articulated

by the agency for its actions were pretextual. The AJ found that the

crux of complainant's claim was age discrimination and concluded that

the agency was �top heavy� with employees who were retirement-eligible

and who were exercising that option and could not be replaced due to

downsizing and hiring freezes. The AJ found, thus, the agency attempted

to address its dilemma with a hiring policy, but some managers were

overzealous in implementing the policy. Specifically, the AJ stated,

�while there is some suggestion that age is being considered in promotion

actions . . . the preponderant evidence is just simply insufficient to

convince me that there really is a systemic problem in that regard.�

The AJ noted that he discounted the testimony of DC1 stating that �he

does have an axe to grind with the agency.� Finally, the AJ found that

complainant was better qualified in some areas and the selectees were

better qualified in other areas and it would be inappropriate for him

to substitute his judgment for that of the agency. The agency issued

a final order implementing the AJ's decision.

Complainant filed an appeal, which was docketed as Ramiro Tellez

v. Department of the Army, EEOC Appeal No. 01A40009. On appeal,

complainant cited various concerns with the administrative hearing,

including the fact that the hearing was conducted via telephone. On May

26, 2004, the Commission issued a decision for EEOC Appeal No. 01A40009

finding no discrimination. Specifically, the Commission found that there

was substantial evidence in the record to support the AJ's finding of

no pretext. In a letter dated August 11, 2004, the Commission informed

complainant and the agency that it intended to reopen the complaints-at-

issue on its own motion. Both parties responded to the Commission's

notice.

In response to the Commission's reconsideration notice, complainant

stated that the AJ's decision is clearly erroneous in law and could

have a substantial impact on the policies, practices or operations

of the agency. Specifically, complainant stated that the AJ found

incorrectly that the agency could cite an economic defense, i.e., an

aging workforce, as a justification for discrimination based on age.

Complainant indicated that the agency's witnesses stated that age has

been used as a screening factor for promotions and hiring with the

theory that younger employees are more technologically knowledgeable.

Complainant asserts, accordingly, that the record contains direct evidence

of age discrimination. In opposition, the agency stated that the decision

of the AJ and the appellate decision of the Commission are correct.

ANALYSIS & FINDINGS

After careful review of the evidence of record and the arguments submitted

by the parties on appeal, the Commission concludes that both the AJ's

decision and the initial appellate decision erred. Both decisions failed

to recognize that this is a case where complainant offered direct evidence

that management officials influential to the selections-at-issue made

statements establishing that age was a motivating factor in the decisions

not to select complainant. By overlooking this direct evidence, both

decisions applied the incorrect legal analysis to the evidence of record.

�Direct evidence� may be any written or verbal policy or statement made

by a management official that on its face demonstrates a bias against

a protected group and is linked to the complained of adverse action.

See EEOC Revised Enforcement Guidance on Recent Developments in Disparate

Treatment Theory, No. 915-002 (July 12, 1992). A link between the

evidence of bias and the challenged employment action can be shown if the

biased statements were made by the decision maker or one who was involved

in the decision, at or around the time the decision was made, even if the

biased remarks were not specifically related to the particular employment

decision at issue. Id., footnote 8. When there is direct evidence

of discrimination, the circumstantial evidence analysis established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is inapplicable.

See Carson v. Department of Veterans Affairs, EEOC Appeal No. 01871596

(January 19, 1988).

The record establishes that complainant, a 59-year-old, was referred as a

qualified candidate for three GS-14 Supervisory General Engineer positions

at WSMR. The evidence further reveals that WSMR senior management

considered age an important factor in employment decisions, including

promotions, as part of their �succession planning� for the future of

the agency, and conveyed such sentiment to middle and lower management.

SO3, the highest ranking official on-site at WSMR, stated that the agency

sought specifically to hire younger employees into entry level positions.

Moreover, in an October 2000 fact-finding conference in another case,

SO3 stated that younger people are more intelligent and technologically

savvy than those in older age groups. In addition, SO1, the selecting

official for two of the positions in dispute (BW00719 and BW995111),

stated that all selection decisions for a GS-14 or higher position,

including the selections-at-issue, had to be presented for concurrence

to a newly-created Board of Directors. SO1 testified that the purpose

of this Board was to develop succession plans for the future of the

agency by promoting people into positions in which they could take a

leadership role in the future, as most of the agency's senior level

managers were retirement-eligible. Finally, there was testimony that

SO2, the selecting official for the third position (BW01012) for which

complainant was considered, had been heard to espouse a policy of hiring

and promoting �younger blood.� A former Division Chief stated that SO2

had been his immediate supervisor and, as such, had �pressured� him into

selecting younger employees, especially for promotion and assignments

in the area of software engineering.<7>

The agency has asserted that its actions were not motivated by age

discrimination but by legitimate �succession planning� required by all

federal agencies faced with the impending retirement of the bulk of

their senior level management. As part of the President's Management

Agenda, the Office of Personnel Management (OPM) is leading the federal

government's Strategic Management of Human Capital initiative. OPM,

recognizing that over one third of the federal workforce is currently

eligible to retire, has encouraged agencies to engage in succession

planning linked to the agency's strategic and program planning efforts and

to identify its current and future human capital needs. OPM instructs

agencies to conduct ongoing workforce analysis to identify its current

and future leadership needs. This includes analyzing the size of the

workforce, its deployment across the organization, and the evolving

competencies needed for the agency to succeed. A formal succession plan

includes a review of current and emerging leadership needs in light of

strategic and program planning, identifies sources of key position talent,

and provides for assessing, developing and managing the identified talent.

Agencies are told to then identify key positions and high-potential

employees and create training programs to develop the next generation

of leaders.

The agency in this matter provided little proof that it had engaged in

the type of sophisticated analysis described above needed for proper

succession planning as detailed by OPM guidance. There is no evidence

of a succession program linked to the agency's strategic plan with

the aim of developing key competencies in employees to meet evolving

missions and train future leaders. Rather, the management officials

responsible for the selections-at-issue simplistically adopted the view

that succession planning meant that younger employees were better than

older employees, and used age as a barrier in its promotion decisions.

We find that the statements of management officials influential to the

selections-at-issue are discriminatory on their face and are linked

to the complained of adverse actions. Therefore, the weight of the

evidence establishes that unlawful age discrimination occurred in the

selections-at-issue rather than legitimate succession planning.

Once a conclusion is drawn that an impermissible factor played a

motivating part in an employment decision, the burden shifts to the

employer to prove by a preponderance of the evidence that it would have

made the same decision even if it had not considered the impermissible

factor.<8> See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258

(1989). Prior to the Civil Rights Act of 1991 (CRA), an employer could

avoid liability in mixed motive cases if it could show that it would have

made the same decision even absent the unlawful factor. Id. However,

the CRA effectively overruled the part of Price Waterhouse that allowed an

employer to avoid liability in this way. The CRA added Section 703(m)

to Title VII, making it clear that a violation is established when

a complaining party demonstrates that "race, color, religion, sex, or

national origin, was a motivating factor for any employment practice, even

though other factors also motivated the practice." 42 U.S.C. � 2000e-2(m).

However, in the case at hand, age discrimination is involved and the

CRA did not amend the Age Discrimination in Employment Act. The rule of

Price Waterhouse still applies to age discrimination cases and the agency

can avoid liability altogether if it establishes that it would have made

the same decision even absent discrimination. Kubik v. Department of

Transportation, EEOC Appeal No. 01973801 (July 9, 2001).

Regarding positions BW00719 and BW95111, the selecting official, SO1,

stated that he reviewed and compared resumes based on a five-part

criterion. He stated that, based on the five criteria, he reduced the

candidate pools and interviewed the top three candidates. SO1 stated

that he presented the top three candidates to the Board for concurrence,

and selected one candidate, C1, because of the experience and skills he

possessed due to his tenure as Project Engineer for the largest and most

challenging program at WSMR and the second candidate, C2, due to his more

eclectic experience in test and evaluation and national prominence as a

MT Engineer. The record shows that C1 was 41 and C2 was 52 at the time

of the selections. SO1 provided a memorandum-to-the record, notes, and

rating lists to support his contentions. C1 and C2 ranked significantly

higher than complainant on the rating lists for the positions.

Regarding position BW01012, the selecting official, SO2, stated that he

considered a number of criteria in reviewing the candidates' applications.

SO2 stated further that, without interviews and based on his personal

knowledge of each candidate's work history, he made a selection -- C3.

C3 was 38 at the time of his selection, significantly younger than

complainant. SO2 acknowledged that he does not have documentation to

support his selection, but stated that he received concurrence from the

Board and approval from his supervisor for his selection. We note that

there is evidence that SO2 espoused a policy of hiring and promoting

�younger blood� within the agency. Testimony showed that selections

were brought to the Board to see if there were any concerns with them,

but that the Board did not look at applications. Rather, the person

who made the selection, which in this instance was SO2, would explain

why the selection was made orally before the Board, and the Board would

then apparently vote.

Based on the above, we find that the agency has met its burden regarding

positions BW00719 and BW95111, but has not done so regarding position

BW01012. For positions BW00719 and BW95111, we are persuaded that there

is evidentiary support for the agency's contention that it would have

made the same decision even absent the discriminatory age bias proven

and, thus, can avoid liability. However, regarding BW01012, we conclude

that the agency failed to prove by a preponderance of the evidence that

it would have made the same decision even if it had not considered the

impermissible factor. The record lacks objective evidence and support for

the non-selection. In addition, the management official who espoused

a policy of hiring and promoting �younger blood� was the selecting

official and sought concurrence from a Board that he may have helped

create for a similar purpose. We are not persuaded that the agency's

actions were based on considerations of national origin or reprisal.

Therefore, we note that compensatory damages<9> and attorneys fees<10>

are not available under the Age Discrimination in Employment Act and

the Order does not provide for such relief.

CONCLUSION

The Commission finds that the evidence of record meets the criteria of

29 C.F.R. � 1614.405(b), and it is the decision of the Commission to

vacate the decision in Ramiro Tellez v. Department of the Army, EEOC

Appeal No. 01A40009 (May 26, 2004). The agency is directed to comply

with the Order below. There is no further right of administrative appeal

on the decision of the Commission on a Request to Reconsider.

ORDER

The agency is ORDERED to take the following remedial action within

ninety (90) calendar days of the date this decision becomes final,

unless otherwise noted:

(1) The agency shall retroactively promote complainant to a GS-14

Supervisory General Engineer position effective April 8, 2001. Further,

the agency shall award complainant any subsequent step increases on

the GS-14 level he would have received, absent discrimination, since

that time.

(2) The agency shall determine the appropriate amount of back pay with

interest; overtime pay, if any, with interest; and other benefits due

complainant, pursuant to 29 C.F.R. � 1614.501, less any appropriate

offsets. The agency's calculations shall be based upon the appropriate

grade and step levels as set forth in the above decision and paragraph

(1) of this Order. The complainant shall cooperate in the agency's

efforts to compute the amount of back pay, overtime 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, overtime

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 enforcement or clarification must be filed with the

Compliance Officer, at the address referenced in the statement entitled

�Implementation of the Commission's Decision.�

(3) The agency is directed to provide EEO training for the responsible

management officials addressing their responsibilities with respect

to eliminating discrimination in the workplace with an emphasis on age

discrimination and the current state of law on employment discrimination.

(4) The agency shall consider taking disciplinary action against

the management officials identified as being responsible for the

discrimination perpetrated 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 shall provide a detailed statement of all of its

calculations pertaining to the instant matter to complainant,

complainant's representative and the Commission.

(6) The agency is further directed to submit a report of compliance, as

provided in the paragraph entitled �Implementation of the Commission's

Decision.� The report shall include supporting documentation of the

agency's actions in compliance with this Order.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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:

______________________________

Stephen Llewellyn

Acting Executive Officer

Executive Secretariat

March 18, 2005

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the

United States Equal Employment Opportunity Commission dated

which found that a violation of the Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has occurred

at the White Sands Missile Range facility of the Department of the Army

(hereinafter �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.

The facility supports and will comply with such Federal law and will

not take action against individuals because they have exercised their

rights under law.

The facility was found to have unlawfully discriminated against the

individual affected by the Commission's findings on the basis of age when

it failed to select him for a promotion. The agency shall therefore

remedy the discrimination by retroactively issuing the individual a

promotion, posting this notice, paying back pay, conducting training,

and considering disciplinary action. The 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.

The facility 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 1614

1The basis of reprisal applies to the non-selection for BW01012 only.

2We note that eight candidates received a higher total rating than

complainant. C1 received a �14,� C2 received a �15,� and complainant

received a �10.�

3SO1 noted that the fourth candidate was his deputy so he felt no need

to interview him.

4According to the record, SO3 was the sole member of the Senior Executive

Service on-site at WSMR.

5We note that although the AJ identifies a non-attorney representative

for complainant at the hearing, complainant conducted the direct and

cross examinations of the witnesses.

6DC1 filed an EEO complaint and then a civil action against the agency for

age discrimination. DC1 named SO2 as a responsible management official

in his complaint.

7 We conclude that the AJ should not have discounted the testimony of

the Division Chief based on his prior EEO activity.

8Cases in which discrimination was one of at least two motivating factors

for an employment action, i.e., in which the agency acted on the bases

of both lawful and unlawful reasons, are known as "mixed motive" cases.

9 See Falk v. Department of the Treasury, EEOC Request No. 05960250

(September 5, 1996).

10 See Cho v. Department of the Army, EEOC Request No. 05930148 (July

16, 1993).