Robert L. Segers, Complainantv.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
07a40033 (E.E.O.C. Mar. 30, 2005)

07a40033

03-30-2005

Robert L. Segers, Complainant v. John W. Snow, Secretary, Department of the Treasury, Agency.


Robert L. Segers v. Department of the Treasury

07A40033

March 30, 2005

.

Robert L. Segers,

Complainant

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 07A40033

Agency No. 98-2073

Hearing Nos. 150-1999-008695X

DECISION

The Commission accepts the parties' timely filed appeals, pursuant to

29 C.F.R. � 1614.405. The agency requests that the Commission affirm

its rejection of the EEOC Administrative Judge's (AJ) finding of

age discrimination and the order of relief, which included back-pay,

training and equitable relief. The complainant cross-appeals the portion

of the AJ's decision that found no retaliation, and the attorney seeks

attorney's fees and costs for the portion of the decision that found a

violation pursuant to the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission AFFIRMS,

in part and REVERSES, in part, the agency's final orders.

The record reveals that the complainant was a GS-1811-12 Criminal

Investigator, employed at the agency's Internal Revenue Service Criminal

Investigation Division, North Florida Division facility. He applied,

but was not selected, for a promotion under any of the five Special

Agent, GS-1811-13, positions, that were filled on October 3, 1997.

He filed a formal EEO complaint with the agency, alleging that the

agency discriminated against him on the basis of age (D.O.B. 2/22/1947)

and reprisal.

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

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ).

Following a consolidated hearing,<1> the AJ found that the complainant

established his claim of age discrimination. Based on the evidence,

and buttressed by the AJ's observation of the demeanor of the witnesses,

internal inconsistencies and violations of the agency's own policies, the

AJ concluded that the reasons provided by the agency for the non-selection

of the complainant were a pretext for discrimination. The AJ also noted

that the record included some direct evidence of discrimination. However,

the AJ ruled against the complainant on the complainant's retaliation

claim. The AJ denied fees and costs under the ADEA.

The agency adopted the AJ decision with regard to the AJ's finding that

the complainant had not met the burden of proving that the responsible

management official knew of the protected activity when he made the

promotions. The agency's final order rejected the AJ's decision as it

pertained to the age discrimination finding that the employee had been

affected by an unlawful personnel action.

On appeal, the agency argues that the AJ erred by substituting the AJ's

judgement for that of the employer. In addition, with regard to the

requested relief, the agency contends that the Commission regulations

preclude it from awarding attorney fees on ADEA matters.<2>

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 noted

that the selectees were both placed at the GS -13/2 level as a result

of their promotions and each had been at the GS-12/5 level immediately

before being promoted.

After a careful review of the record, we discern no basis to disturb the

AJ's finding of discrimination based on age for the complainant or order

of relief. The findings of fact are supported by substantial evidence,

and the AJ correctly applied the appropriate regulations, policies,

and laws. Further, we agree with the AJ that the complainant was not

retaliated against and we affirm that portion of the agency's order.

The Commission agrees with the findings of discrimination and the order

of relief set forth by the AJ. The Commission, therefore, reverses the

agency's decision in part and directs the agency to take corrective

action in accordance with this decision and the Order below.

ORDER (D0403)

The agency is ordered to take the following remedial action:

No later than sixty (60) calendar days after the date this decision

becomes final,<3> the agency shall determine the appropriate amount

of back pay, with interest, and other benefits due complainant from

October 12, 1997 (the effective date of the selectees' promotions),

until October 12, 2000, the date as to which the complainant testified

that the complainant would have worked to have obtained a GS-13 salary

for the last three years of his employment, along with all appropriate

adjustments to his retirement, and pursuant to 29 C.F.R. � 1614.501.

In determining the back-pay, the parties must determine the appropriate

GS-13 level to which complainant would have been promoted. When

determining this calculation the parties shall recognize that the

complainant was already a GS- 12/8 in January of 1997. 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."

No later than sixty (60) calendar days after the date this decision

becomes final, the agency is directed to provide eight hours of

training for the three deciding officials named on page 97 of the AJ

decision who engaged in the discrimination. The agency shall address the

officials' responsibilities with respect to prohibiting and refraining

from discrimination in the workplace. Each shall receive a minimum of

eight (8) hours of EEO training with respect to the Age Discrimination in

Employment Act to ensure that acts of retaliation are not taken against

any employee who opposes unlawful discrimination, and that persons

reporting, assisting or challenging acts perceived to be unlawful are

treated in a lawful manner in accordance with the EEO laws.

No later than sixty (60) calendar days after the date this decision

becomes final, the agency is to determine whether disciplinary action

against the responsible individuals discussed herein is appropriate. The

agency shall record the basis for its decision to take or not to take

such actions, and report the same to the Commission in the same manner

that the implementation of the rest of the order is reported.

The agency shall post at the Criminal Investigative Division of the

North Florida District copies of the attached Notice. Copies of the

Notice, after being signed by the agency director, shall be posted at

the agency, immediately upon receipt, as set forth 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 back-pay 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 Internal Revenue Service Criminal

Investigative Division of the North Florida District 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.

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 30, 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 this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of that person's RACE, COLOR,

RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY

with respect to hiring, firing, promotion, compensation, or other terms,

conditions, or privileges of employment.

The United States Department of Treasury Internal Revenue Service Criminal

Investigation Division North Florida Division supports and will comply

with such Federal law and will not take action against individuals

because they have exercised their rights under law.

The United States Department of Treasury Internal Revenue Service

Criminal Investigation Division North Florida Division has been found to

have discriminated against the individual affected by the Commission's

finding because of his age when he was not selected for promotion to

a Special Agent, GS-1811-13 position. The United States Department of

Treasury Internal Revenue Service Criminal Investigation Division North

Florida Division shall provide the affected individual with back pay,

train the responsible managers, and post this notice. The United States

Department of Treasury Internal Revenue Service Criminal Investigation

Division North Florida Division 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.

The United States Department of Treasury Internal Revenue Service

Criminal Investigation Division North Florida Division 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 16141 The complainant was one of three complainants whose

claims were considered by the AJ in a consolidated hearing. The Commission

will address the appeal of David C. Solar, EEOC Appeal No. 07A40030,

in a separate decision.

2 We note that neither compensatory damages nor attorney's fees are

available remedies under the ADEA. See Falks v. Department of Treasury,

EEOC Request No. 05960250 (September 5, 1996).

3 As stated in the AJ Order of relief, when determining the back-pay

calculation, the parties shall recognize that the complainant was already

a GS 12/8 in January of 1997.