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.