07A00022
10-26-2001
Tracy C. Sondeen, Complainant, v. Joseph Allbaugh, Director, Federal Emergency Management Agency, Appeal No. 07A00022 Agency No. 96-025 Hearing No. 320-975-8530X
Tracy C. Sondeen v. Federal Emergency Management Agency
07A00022
October 26, 2001
.
Tracy C. Sondeen,
Complainant,
v.
Joseph Allbaugh,
Director,
Federal Emergency Management Agency,
Appeal No. 07A00022
Agency No. 96-025
Hearing No. 320-975-8530X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). Complainant alleges she was discriminated against
on the bases of sex (female) and reprisal (prior EEO activity) when:
(1) The agency announced a GS-13 State/Local Coordinator position,
placed complainant on the �best qualified� list for the position,
and then canceled the announcement;
(2) The agency pre-selected the selectee for the subject position,
and allowed her unfair advantages in the application process; and
(3) On August 26, 1996, complainant was advised that she was not
selected for the subject position.
For the following reasons, the Commission REVERSES the agency's final
action.
The record reveals that complainant, an Emergency Management Specialist at
the agency's Denver, Colorado facility, filed a formal EEO complaint with
the agency on October 23, 1996, alleging that the agency had discriminated
against her as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding discrimination. The AJ concluded that complainant failed to prove
sex discrimination since the selectee was also a female. However, the
AJ concluded that complainant established a prima facie case of reprisal
discrimination because the record shows the following: Complainant
filed a prior EEO complaint in 1994. The responsible management official
(RMO) was aware of the 1994 complaint and he testified at complainant's
March, 1996 EEO hearing which occurred shortly before the agency issued
the first of two announcements for the subject position. Within three
to six months after RMO testified at complainant's 1996 EEO hearing,
he twice failed to select her for the subject position. The AJ found
that the proximity in time between the prior EEO activity and the two
non-selections shows that those events are causally related. Accordingly,
the AJ found that complainant met her prima facie burden of reprisal.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that the agency proffered two reasons for the first non-selection.
First, the RMO claimed that three applicants was an insufficient number
to consider for the job; he wanted a list with at least five applicants.
Second, RMO claimed that �the same three applicants [that were on the
current Merit Promotion Certificate (MPC)] were also on the certification
[in 1994],<1> and if one was selected only two would remain. . .� The
AJ found that the reasonable inference from this statement was that RMO's
rejection of the MPC was based upon his concern about another challenge
to his selection for the position. The AJ found that by implication,
RMO reasoned that his exposure to liability would be greater if �only
two� candidates remained after his selection from a list of three,
than if he selected a candidate from a larger list of eligible persons.
According to the AJ, RMO's evident reasoning was that the non-selection
of any one candidate is less conspicuous when the applicant pool is
larger and more conspicuous when the pool is more modest.
The AJ found that the agency articulated a reason for its second
non-selection of complainant. It asserted that C2 (female) was the best
candidate for the position. According to the agency, its determination
that C2 was the best qualified was based mainly upon complainant's and
C2's interviews for the position, although some consideration was given
to the candidates' applications, and, in the case of complainant, her
prior work performance. According to RMO, C2 was the best candidate
because of her strong interview. He was impressed because �[s]he showed
a lot of creativity, a lot of energy. She showed a lot of insight.�
In addition to finding complainant not the best qualified, the agency
claims that the interview panel would have chosen a candidate other
than complainant even if it had not chosen C2 for the position (i.e.,
the complainant was not the second most qualified of all the candidates).
The AJ further concluded that complainant established that more
likely than not, the reasons provided by the agency were a pretext
for discrimination or retaliation. In reaching this conclusion, the
AJ examined the series of events that led to the non-selections of
complainant as an ongoing pattern of conduct by the agency.
According to the AJ, RMO's testimony at complainant's March, 1996 EEO
hearing demonstrates the extent of his contempt for the EEO process
in general, and complainant's EEO claim in particular. The AJ found
that RMO, in essence, accused complainant (and most other agency EEO
complainants) of engaging in bad faith and dishonest conduct for trying
to bilk the agency out of money to which she (they) is (are) not entitled.
The AJ found RMO's �strident reaction to be consistent with his inability,
as Regional Director of FEMA Region VIII, to tolerate views opposed to
his own.<2> The AJ found that within four months after his �pointed�
testimony, RMO non-selected complainant, whose name was on the first
certificate of best qualified candidates; within four to five months
after that testimony, he again rejected complainant and selected C2.
The AJ found that RMO's �stridently negative opinion� of complainant
was based upon complainant's pursuit of EEO procedures.
More specifically, the AJ found that RMO's explanation that he rejected
the first certificate because there were too few candidates to be a
pretext to mask his retaliatory animus against complainant. The AJ found
that according to the agency's written promotion rules, three qualified
candidates is an acceptable number from which to select a candidate
for a position. In addition, the AJ found that RMO failed to follow
the agency's rules with respect to the manner in which a certification
may be rejected so that a position vacancy may be re-announced. The AJ
also noted that RMO's explanation for rejecting the three best qualified
candidates was suspicious (i.e., he recognized that the same people who
were on the previous certification, which gave rise to complainant's
initial EEO complaint, were on the current list.) The AJ found that
it was likely that RMO rejected the first MPC because it would be more
difficult to justify his non-selection of complainant when there were
only two obviously less qualified candidates, than with a larger number
of applicants with whom complainant could be compared.
The AJ also found RMO's rejection of the first MPC particularly
suspect given the fact that the AJ found complainant to be the most
qualified of the three candidates on the first list. The AJ noted
the complainant's objective qualifications as follows: Complainant's
qualifications included ten months of practical experience performing
the duties of the position. Her job title (Alternate State and Local
Coordinator) indicated as much. Her extraordinary favorable written
Supervisory Appraisal confirmed her capability to carry out the tasks of
the position. Complainant's appraisal, in particular, gave complainant
high marks on the KSAs that the agency claimed were critically important
for the subject position (knowledge of the Cooperative Agreement (CA)
and Performance Partnership Agreement (PPA)). Even before acting as
State and Local Coordinator, complainant performed some of the duties
of the subject position. Complainant's performance ratings also reflect
her exceptional performance in areas required in the subject position.
The AJ also found RMO's claim that complainant did not perform all of
the duties of the subject position and did not perform them well, not
credible. The AJ noted that RMO agreed with complainant's supervisor's
(RMO1) assessment of her performance when he signed her off on her
supervisor's performance ratings. Only after complainant filed this
EEO complaint, in October, 1996, did the agency modify its otherwise
laudatory opinion of complainant. The AJ found RMO1's placement of
complainant in fourth place after her interview not worthy of belief
in view of his previous complimentary assessments of complainant and
also because of the unexplained disappearance of RMO1's interview score
sheets for complainant. In addition, the AJ found C2 was obviously and
objectively inferior to complainant when comparing qualifications for the
subject position. C2's KSAs, as articulated in her application, indicated
that her only experience with any PPA was in connection with her former
employer, the Environmental Protection Agency (EPA). According to the AJ,
C2's application did not show how her knowledge of the EPA's PPA related
or was transferable to the agency's PPA. In addition, the AJ noted that
C2's application lack specificity as to the time periods and duration of
her alleged relevant experience. Her application also lacked any input
from a supervisor. Accordingly, the AJ found the agency's decision to
evaluate her without such information to be suspect.
The AJ found that RMO's use of subjective criteria to assess the
candidates was designed to improve C2's position. The AJ also found
that the record supported the finding that RMO preselected C2 and that
the preselection was done to preclude complainant. According to the
AJ, this conduct began when RMO took the unusual step of bringing C2 to
his office, before the position was even announced, and providing her
and her alone with information specifically related to the duties and
responsibilities of the subject position. That unprecedented preferential
treatment of C2, along with RMO's glowing praise for her in the presence
of management officials, was indicative of the preselection.
In addition to the irregularities already discussed (use of subjective
criteria and preselection), the AJ noted that the agency's selection
procedures were, in several respects, contrary to its standard practices
and published rules. For example, never before the events in the
present case had the agency re-announced a GS-13 or higher level
position in Region VIII. In addition, the area of consideration in
the second vacancy (the Denver commuting area) was nothing more than a
token reconfiguration of the area of consideration for job applicants to
include C2. Furthermore, RMO's rejection of the first list of candidates
also deviated from the agency's rules which the AJ noted expressly
sanctioned selecting from a list of three candidates. Moreover, RMO did
not follow agency procedure when he failed to provide a written list
of reasons for rejecting the first list of candidates. In addition,
the AJ noted that the agency excused C2, but no other candidate, from
the requirement of submitting a Supervisory Appraisal. According to
the AJ, the Personnel Staffing Specialist's (PSS)<3> testimony about
the non-requirement to submit the Supervisory Appraisal was evasive,
contradictory and unresponsive. The AJ, therefore, found that PSS's
testimony was not credible and that the agency violated its own rules
when it overlooked C2's failure to submit a Supervisory Appraisal.
The AJ also found that the agency violated its own rules when PSS
characterized C2 as a �non-competitive eligible� (NCE). The AJ found
that the agency's own MPP contradicts PSS's testimony. The AJ noted
that the MPP does not mention the term NCE. In addition, all �eligible�
candidates, according to the MPP, must be evaluated against the KSAs.
PSS explained her failure to rate and rank the NCEs with respect to the
KSAs with the assertion that the MPP may not have been in effect when
the subject position was announced. However, she was unable to offer
any specifics to support her assertion. In addition, the AJ found her
testimony on this topic vague and unresponsive. Accordingly, the AJ
found that PSS's failure to rate C2 against the KSAs violated the agency
policy as specified by the MPP.
According to the AJ, the finding that PSS was not credible on certain
points also tainted the credibility of other portions of her testimony.
Accordingly, the AJ rejected the data on Evaluation and Ranking Worksheet
prepared by PSS, in which PSS attempted to show that complainant was
less qualified on the KSA requirements than the two other candidates
whose names also appeared on the first selection certificate.
The AJ also found that RMO maintained control over several aspects of the
selection process. He rejected the first list of eligible candidates.
He provided C2 with information that gave her an advantage as an applicant
for the subject position. He drafted the interview questions and score
sheets and set the procedures for the interview process. He assumed the
roles of both selecting official and member of the selection interview
panel. He gave his opinion to other interview panel members of each
candidate.
The AJ found RMO1's testimony that complainant was his fourth choice
particularly suspect given his otherwise laudatory ratings of complainant
and because of the suspicious and unexplained inability to produce his
interview score sheets. Another interview panelist could not remember
whether she told complainant that she gave her a �10" on her interview,
and her score sheet gave C2 only a slight advantage (92) over complainant
(90).
The AJ held that when one considers the totality of the circumstances
(i.e., the retaliatory animus, the plainly superior qualifications of the
complainant, the subjective criteria applied in the selection process,
the preselection of C2, the agency's departure from its own rules and
regulations, and other disturbing procedural irregularities), there
exists a �factual mosaic that belies the assertions of the agency that
retaliation was not a factor in the selection process.� Accordingly,
the AJ found that complainant met her burden of proving retaliation by
a preponderance of the evidence.
The agency's final action rejected the AJ's decision. In its timely
appeal, the agency argues that the AJ inappropriately made findings of
pretext based on his determinations that agency witnesses or testimony
were not credible, and further used those findings to make additional
credibility findings. In addition, the agency argues that the AJ made
errors of law when he misinterpreted established agency procedures
and regulations, erroneously excluded agency evidence, and failed to
carefully evaluate all of the agency's evidence submitted in support of
its position.
In response, complainant contends that there is no significant evidence
presented by the agency which contradicts the AJ's findings. Moreover,
the complainant argues that pretext of retaliation was supported by
substantial evidence in the record.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including the agency's arguments on appeal, the complainant's response,
and arguments and evidence not specifically discussed in this decision,
the Commission REVERSES the agency's final action and REMANDS the matter
to the agency to take remedial actions in accordance with this decision
and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Not later than thirty (30) days from the date on which this decision
becomes final, the Agency shall offer complainant in writing, at her
choice, either the State and Local Coordinator GS-13 position she was
denied, or a position of equal grade and pay, duties, responsibilities,
and benefits, to be retroactively effective to the date C2 entered into
the subject position. Complainant shall notify the agency within twenty
(20) days from the date she receives the office which of the positions
specified above she accepts. The agency shall implement complainant's
chosen promotion within two (2) pay periods after receiving complainant's
notification.
2. The agency shall remit to complainant all pay and/or benefits lost
as a result of the agency's retaliatory actions taken herein (i.e.,
complainant's non-selection for the GS-13 State and Local Coordinator
position for which C2 was selected, and any subsequent non-competitive
promotions C2 received). The agency shall determine the appropriate
amount of backpay 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. Complainant shall cooperate
in the agency's efforts to compute the amount of backpay, interest, and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of backpay
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
for enforcement for the amount in dispute.
3. The agency shall pay to complainant's attorney the sum of $31,461.47
for attorney's fees and costs, no later than sixty (60) calendar days
after the date this decision becomes final.<4>
4. The agency shall take corrective, curative and preventive action to
ensure that unlawful reprisal does not recur, including reviewing the
matter giving rise to this complaint and determining whether RMO should
(1) receive remedial training in EEO law; and/or (2) be disciplined for
his unlawful retaliatory conduct in this case.
5. 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 (G1092)
The agency is ORDERED to post at its Denver, Colorado 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.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
October 26, 2001
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. has occurred at 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.
The Federal Emergency Management Agency, Denver, Colorado (�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 has been found to have discriminated on the basis of
reprisal when an Emergency Management Specialist (GS-12) was not
selected to the position of State and Local Coordinator (GS-13) in
August, 1996. The Facility has been ordered to: (1) offer complainant
her choice of the State and Local Coordinator position she was denied
or a position substantially equivalent to such position, retroactive
to the date when the selectee was placed in the position; (2) issue an
appropriate award of backpay; and (3) award reasonable attorney's fees
and costs in the amount of $31,461.47. 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 and will not retaliate against employees
who file EEO complaints.
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 16141 In 1994, complainant applied for the position of
Emergency Management Program Specialist, GS-13. RMO selected a male
employee (C1). As a result of complainant's non-selection to the subject
position in 1994, she filed an EEO complaint on September 21, 1994.
2 See testimony of complainant's witness (W1) at 288-289.
3 PSS was responsible for evaluating, rating and ranking all candidates
for the subject position.
4 Complainant was represented by counsel in this complaint. Complainant's
attorney submitted a claim to the AJ for attorney's fees and costs in
the amount of $31,461.47. The agency did not respond to complainant's
attorney's claim for attorneys's fees and costs and the AJ awarded the
full amount requested in his decision. In addition, the agency failed
to raise this issue on appeal.