0720080061
01-06-2009
Sally Hamer, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Sally Hamer,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0720080061
Hearing No. 430-2007-00090X
Agency No. RD200700649
DECISION
INTRODUCTION
Following its August 29, 2008 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding of discrimination in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ. Complainant filed
a cross-appeal. For the following reasons, the Commission REVERSES,
in part, the agency's final order.
BACKGROUND
General
During the relevant period, complainant was employed as a Director of the
agency's Area One for Virginia. She was based at the agency's Lebanon,
VA office but supervised several offices. In a formal EEO complaint
dated July 12, 2006, complainant alleged that the agency discriminated
against her based on sex (female), age (over 40) and reprisal for
prior EEO activity when the Acting State Director (S1) (1) in mid-2005,
did not allow her to participate on a task force that would effect her
Wytheville, VA office and employees, (2) in June 2005, initially did not
allow her to attend an International Rural Network Conference training,
(3) did not consult her regarding an investigation in the Wytheville
office she managed and disguised the investigation as a team building
effort, (4) removed the Wytheville office from complainant's supervision
without allowing her to defend herself and, effective March 24, 2006,
assigned it to a male employee (C1). Further, complainant alleged
that the agency discriminated against her when (5) on April 24, 2007,
S1 reassigned her from the agency's Lebanon, VA office to its Lynchburg,
VA office, which is 150 miles from her home and (6) S1 accused her of
creating a hostile work environment in the Wytheville office. Summarily,
complainant alleged that S1 created a hostile work environment to force
her to retire. Complainant retired on October 4, 2007.
The agency accepted complainant's complaint for investigation. During
the agency investigation, S1 stated (1) he did not place complainant on
the task force because he wanted a small team that could be responsive
and would keep discussions confidential, (2) he allowed complainant to
attend the training and does not recall initially denying her request to
attend, (3) the Wytheville office was evaluated for conflict resolution
based on employee concerns and a determination was made that complainant
allowed a hostile work environment to exist in the office without proper
response, and (4) he temporarily assigned C1 to complainant's position to
limit the agency's potential liability for harassment and to allow the
newly-appointed State Director (S2) to evaluate the matter. S2 stated
that she permanently reassigned C1 to Wytheville because she thought it
best that complainant not supervise that staff.
Hearing
At the conclusion of the agency investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ held a hearing over December 6 and 7,
2007, and issued a decision dated July 18, 2008. The AJ found that
complainant initiated EEO contact in an untimely manner for (1) and
(2). Regarding the remaining matters, the AJ found that complainant
failed to establish a prima facie case of discrimination based on sex
or reprisal, but did so based on age. Specifically, as to sex, the AJ
stated that complainant failed to show that others, who were similarly
situated and outside her protected class, were treated more favorably.
For reprisal, the AJ found no nexus between complainant's prior EEO
activity and the actions at hand. With regard to age, the AJ stated
that there was sufficient evidence that S1 targeted older employees.
The AJ noted that S1 utilized a retirement-eligible list to make
reductions in the agency's Virginia offices and attempt to force
complainant to retire; conducted an unfair review of complainant's office
by hand-picking files to be scrutinized during an internal review by
the state; launched an unjustified and bizarre investigation against
complainant without informing her; temporarily removed complainant from
supervision of the Wytheville office; and allowed a male comparator, C1,
privileges in complainant's position that complainant was not allowed.
Further, the AJ noted that, during the hearing, S1 was evasive regarding
the reason he sent Human Resources to conduct an investigation in the
Wytheville office, and the Human Resources investigator was hesitant
to discuss why S1 sent her to the Wytheville office. Lastly, the AJ
noted that, once S1 reassigned complainant to Lynchburg, she was still
subjected to a hostile work environment. The AJ found some of S1's
testimony incredible. Consequently, the AJ ordered the remedies of
notice to all facility employees; reinstatement retroactive to the date
of complainant's retirement on October 4, 2007; back pay with interest
and commensurate employment benefits from the date complainant would have
entered duty on August 4, 1998; incurred and future medical expenses;
and recommended suspension of S1 for thirty days. 1 The AJ noted that
complainant is not entitled to compensatory damages or attorney's fees
under the ADEA.
Final Order and Appeals
In its August 29 final order, the agency stated that it would not fully
implement the AJ's finding of age discrimination and order of remedies.
The agency accepted the AJ's finding of no discrimination otherwise.
On September 8, 2008, following its August 29, 2008 final order, the
agency filed a timely appeal which the Commission accepts pursuant to
29 C.F.R. � 1614. On appeal, the agency requests that the Commission
affirm its rejection of the AJ's finding that it discriminated against
complainant on the basis of age. Primarily, the agency asserts that
it can show that it would have taken the same actions even absent
discriminatory motives. Complainant filed a counter appeal asking the
Commission to modify the AJ's decision by finding discrimination on all
alleged bases.
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, Inc. 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 careful review of the record, we find there is substantial evidence
in the record to support the AJ's finding that complainant established
an inference of age discrimination. Under the ADEA, it is "unlawful
for an employer . . . to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. � 623(a)(1). When a
complainant alleges that he or she has been disparately treated by the
employing agency as a result of unlawful age discrimination, "liability
depends on whether the protected trait (under the ADEA, age) actually
motivated the employer's decision." Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507
U.S. 604, 610 (1993)). In other words, "[complainant's] age must have
'actually played a role in the employer's decision making process and
had a determinative influence on the outcome.'" Id.
Here, we find there is substantial evidence in the record to support
the AJ's finding of discriminatory intent on the basis of complainant's
age. We note that the AJ placed a substantial amount of weight on his
credibility determinations and we defer to his determinations as objective
evidence of the record does not contradict them. See EEOC Management
Directive 110, Chapter 9, � VI.B. (November 9, 1999). Regarding the
agency's affirmance of the AJ finding of no discrimination based on sex or
reprisal, we agree that complainant did not show by a preponderance of the
evidence that the agency acted on the basis of discriminatory motives.
See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711
(1983).
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
agency's final action as to the finding of discrimination based on age
and AFFIRM its finding based on sex and reprisal. We direct the agency
to comply with the ORDER set forth below. We note that the finding of
discrimination is under the ADEA, and therefore no attorney's fees,
costs, or compensatory damages are allowed.
ORDER
The agency is ORDERED provide full relief in accordance with 29 C.F.R. �
1614.501, to include the following remedial actions:
(1) Within sixty (60) calendar days of receipt of this decision, the
agency shall offer to retroactively place complainant into the position
of Area Director, USDA Rural Development, Lebanon Area Office, Lebanon,
Virginia; or a substantially equivalent position. Complainant shall
have 15 calendar days from receipt of the offer to accept or decline
the offer. Failure to accept the offer within the 15-day period shall
be considered a declination of the offer, unless the complainant can
show that circumstances beyond her control prevented a response within
the 15-day time limit. If the offer is accepted, appointment shall be
retroactive to the date complainant retired, October 4, 2007.
(2) The agency shall determine the appropriate amount of back pay,
with interest, 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."
Back-pay shall be awarded from the date of complainant's retirement until
the date complainant actually returns to duty or declines the offer
(subject to the 15-day time limit), and in accordance with 5 C.F.R. �
550.805.
(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, if applicable, and the Commission.
(6) The agency shall post a notice in accordance with the paragraph
below.
(7) 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.
POSTING ORDER (G0900)
The agency is ordered to post at its Lebanon, VA, Wytheville, VA, and
Lynchburg, VA facilities 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 (K0408)
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 (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 6, 2009
__________________
Date
1 The AJ's award of remedies back to August 1998, and of incurred and
future medical expenses appear to be in error.
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0720080061
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720080061