UNITED STATES OF AMERICA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
In the matter of:
PAMELA J. JOHNSON,
DONALD RUMSFELD, SECRETARY,
UNITED STATES DEPARTMENT OF DEFENSE,
AGENCY #99-003 & 0070E
BEFORE: RICARDO CUEVAS
APPEARANCES: SHAWN F. BROUSSEAU, Esq.
JOHN W. VanDENBURGH, Esq.
Attorneys for the Complainant
MICHAEL GIANINI, Esq.
Attorney for the Agency
PLACE: U.S. Federal Building
Syracuse, New York
DATES: June 20th & 21, 2001
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Jurisdiction of this matter is predicated upon Title VII of the Civil Rights Act of 1964, as
amended ("Title VII"), 42 U.S.C. §2000e, et seq. and Section 501 of the Rehabilitation Act of
1973, as amended ("Rehabilitation Act"), 29 U.S.C. §701 ~t seq. ‘Rules and regulations
promulgated by the U.S. Equal Employment Opportunity Commission ("Commission") appear at
29 C.F.R. Part 1614 ~! seq., as amended (11/9/99).
Ahearing was conducted in the matter of Pamela J. Johnson (hereinafter referred to as the "Complainant") versus Donald Rumsfeld, Secretary, United States Department of Defense (hereinafter referred to as the "Agency").
At hearing, the parties stipulated to the following issues:
Whether or not the Complainant was discriminated against on the basis of a physical impairment, described as a "hearing loss" and/or whether the Complainant was retaliated against for engagement in prior protected activity when: (1) Complainant was required to perform duties outside of her job description; (2) Complainant was denied the opportunity to receive "SRD-1 System" experience from May of 1997 until the present and (3) Complainant was not selected for the position of "Accountant Temp., OS-S 10-07/09" under Agency Vacancy Announcement Number-OL~RM~O8-98 (also referred to as the "Intern position"), on August 10, 1998 and September 18, 1998. See Hearing Transcript ("HT") at pp.9-20.
‘The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. Since that time, the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of disability discrimination. These regulations can be found at the Commission’s web site at www.eeoc.gov.
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BURDENS OF PROOF
The U.S. Supreme Court has established a three-part evidentiary process which assigns the order and allocation of proof in civil actions alleging disparate treatment in violation of Title VII of the Civil Rights Act of 1964, as amended. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Fumco Construction Corp. v. Waters,438 U.S. 567 (1978); McDonnell Douglas v. Green, 411 U.S. 792 (1973). In addition to Title VII, the court’s three-tier evidentiary analysis is equally applicable to cases arising under the Rehabilitation Act, as amended. Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
First, the Complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of illegal discrimination. Second, where the Complainant succeeds in proving a prima facie case, the burden then shifts to the Agency to articulate some legitimate nondiscriminatory reason(s) for the employment action and/or decision in question. Third, the Complainant is then afforded the opportunity to prove (by a preponderance of the evidence) that the Agency’s articulated reason(s) was not true and only served as a pretext for actual illegal employment discrimination.
It is noted that the Complainant’s prima facie evidentiary showing is not applied in an absolute rigid manner; rather, the prima facie prerequisites are to be adopted to the particulars of the individual case at hand. McCorsten v. United States Steel, 621 F.2d 749 (5th Cir. 1980); Laugeson v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975); McDonnell Douglas, supra, n. 13.
Nevertheless, it is emphasized that the ultimate burden of persuading the trier of fact that the
Agency intentionally discriminated remains at all times with the Complainant. St. Mary’s Honor
Center v. Hicks, 113 S. Ct. 2742 (1993); Cooper v. Federal Reserve Bank of Richmond, 467 U.S.
867 (1984); United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716
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In order to establish a prima facie case of discrimination, the Complainant must prove: (1) she is a member of the identified protected group and (2) she was treated differently than similarly situated individuals outside of the protected group.
A prima facie case of reprisal is established by showing: (1) an individual engaged in protected EEO related activity; (2) the responsible management official(s) was aware of the protected activity; (3) the individual was subject to adverse treatment and (4) ‘the adverse treatment followed the protected activity within such a period of time that retaliatory motivation may be inferred. Manoharan v. Columbia University College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); McKenna v. Weinberaer, 729 F.2d 783, 790 (D.C. Cir. 1984).
In order to establish a prima facie case of discrimination on the basis of physical/mental disability, an individual must demonstrate that s/he is a "qualified individual" within the meaning of the Rehabilitation Act, as amended. Commission regulation 29 C.F.R. § 1614. 203(a)(1) defines an individual with a disability as one who: (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.
In addition, the individual must establish the s/he is a "qualified individual with a disability" in that s/he can perform, with or without reasonable accommodation, the essential functions of the position in question without endangering the health and safety of the individual or others. 29 C.F.R. §1614.203(a)(6).
If the individual alleges a failure to accommodate and presents evidence that s/he is a qualified individual with a disability, the burden then shifts to the Agency. In turn, the Agency must either show that no reasonable accommodation of the individual’s disability is available, or that such an accommodation would impose an "undue hardship" on the operations of the Agency. See Prewitt, supra, at 30 1-02.
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With respect to the instant claim of Complainant’s physical disability, i.e., hearing loss, the threshold issue is to determine whether the Complainant is an individual with a disability within the meaning of the Act. In order to establish a prima facie case, the Complainant must prove that she fulfills the statutory definition of an individual with a disability.
The Act does not define "substantially limits" nor "major life activities" but regulations promulgated by the Commission provide significant guidance. "Major life activities" include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working. 29 C.F.R. §1614.203(á)(3). To "substantially limit" means that an individual is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. 29 C.F.R. §1630.2(2)(j). An impairment that affects only a narrow range of jobs is not considered a substantially limiting one. Heilweil v. Mount Sinai Hosp., 32 F .3d 718, 723 (2d Cir. 1994).
The Complainant testified that since childhood she has experienced a total loss of hearing in her right ear. HT93-94. The Complainant suffers a 60 percent loss of hearing in her left ear which is reduced to a 30-40 percent hearing loss with the assistance of an electronic hearing aid. HT94. The Complainant utilizes amplified telephone systems and ‘reads’ the lips of individuals approximately ninety-percent of the time. HT95.
In terms of daily activities, Complainant described that she must sit close to speakers at office meetings, sometimes has to rephrase her words when meeting new people and at times misses the dialog while attending the movies. HT94-96; 100. In addition, while the Complainant can handle conversations with three or four people, if the number grows to six or more individuals, the
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Complainant has difficulty filly participating, e.g., luncheons. HT1O1.
Other than the Complainant’s testimony that she has a problem actively communicating within a group of six or more individuals, or sometimes misses telephone messages and portions of movie dialogue, the Complainant did not describe any other demonstrable impact that her hearing loss produces on a daily basis. While the Complainant’s physical impairment is undisputed and can not be dismissed as inconsequential, given the Complainant’s skills at ‘lip-reading’ and use of electronic devices, e.g., a hearing aid, amplified telephones, etc., the Complainant’s hearing loss at this point of her life does not appear to be substantially limiting.
Assuming arguendo that the Complainant is a qualified individual with a physical impairment within the meaning of the Rehabilitation Act, as amended, the credible evidence of record does not support a prima facie showing of disability discrimination with regard to the first two identified issues in this matter, i.e., assigned job duties and training experience. My finding is especially supported given the personal nature of the Complainant’s subjective expectations in the areas of job experience and/or training.
With regard to the third stipulated issue, i.e., Agency Vacancy Announcement No. OL-RM-08-98, for the reasons stated hereinafter, I am of the opinion that the evidence of Agency reprisal is so overwhelming that the existence of the Complainant’s physical impairment was of no factual or legal consequence.
As such, I find that the Complainant’s testimony of record does not equate to an evidentiary finding that her physical impairment presently has a substantial impact on major life activities. Accordingly, I conclude that the Complainant failed to prove that she was discriminated against on the basis of a physical disability, i.e., hearing loss.
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In March of 1995, the Complainant began her employment with the Agency as a GS-5 "Accountant Technician" in the Travel Office. At the commencement of her employment, the Complainant held a Bachelor’s Degree in certified public accounting and a minor-major in computer science with ten years of work experience in the U.S. Air Force accounting office. HT41; 44-45;180.
As an Accountant Technician, the Complainant performed work duties such as conducting travel
voucher audits, processing cash advances and typing account travel forms. HT42. The
Complainant also audited the work-product of co-workers. HT43. While assigned to the Travel
Office, the Complainant filed an EEO complaint against the Agency.
On November 2, 1995, the Complainant was called to a one-on-one meeting with the Agency’s
top managerial official at the Rome, New York facility. Namely, Agency Director Steven R.
Bonta who is also identified by the Complainant as the Responsible Management Official
("RMO") in this case. HT47-48;67.
The Complainant testified that during the course of the November2nd meeting, RMO Bonta reported that he had received a telephone call from the Agency’s EEO department at headquarters and that RMO Bonta had agreed to transfer the Complaint from the Travel Office. According to the Complainant, RMO Bonta stated: "1 don’t agree with this. I’m not happy about this, but I have to move you."’ HT49 at ln.9-10;133.
In addition to his expressed unhappiness, RMO Bonta voiced a concern over the Complainant’s "attitude." HT49; 52. The Complainant maintains that RMO Bonta also stated:"‘ ... [a]t this point...I’m [Bonta] not going to recommend you for any other promotions or anything."’ HT5 in. 19-20; 131. Finally, RMO Bonta concluded the meeting with a statement that "[H]e [Bonta] didn’t want to see me [Complainant] back in his office...." HT67 ln.12; 14-15;68.
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The Complainant added that RMO Bonta’s statements and comments of November 2~ were so disturbing that she felt compelled to write to the EEO Counselor on November 5, 1995. The Complainant’s November 5th memorandum to the EEO Counselor stated, among other things, "He [RMO] also told me that, at this point he did not feel confident to recommend me for another job [original emphasis omitted]." Report of Investigation ("ROI") at p.105; HT53-55. RMO Bonta also issued a memorandum to file regarding his November 2nd meeting with the Complainant. HT33 7-3 39.
On November 21, 1995, the Complainant signed an EEO settlement agreement with the Agency which effectuated a transfer for the Complainant from the Agency’s "Travel Office" to the "Systems Office" as a "Financial Assistant" GS-5. ROT pp.102-103; HT5T;60. The Agency’s Systems Office provides computer systems/software expertise to other Agency work units and departments. HT6O;62.
Upon her transfer and for the next several months, the Complainant was assigned little or no Systems’ work and/or was assigned basic clerical duties such as typing, time-keeping duties and making telephone reservations. HT59;65-66. In the spring of 1996, the Systems Office was assigned a new supervisor, Mr. James T. Shea. HT69.
Upon his arrival, Supervisor Shea informed the Complainant that he needed a "secretary" but the Complainant disagreed stating that she required "real credible work experience." HT7O ln.3; 69-70. The Complainant and supervisor reached a "deal" in which the Complainant would continue to perform clerical work duties and Supervisor Shea would assign the Complainant systems related experience. HT7O ln.23; 145.
The Complainant admits that between 1996 through approximately April of 1998, Supervisor Shea did expand the Complainant’s job experience with systems-related assignments such as security access to data base software and "STAF1NS" control cards. HT7T-72;74; 142-143; 144; 165ln.24-25; 165-167. The Complainant admits she attended training sessions such as "SRD-1"
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and worked with senior co-workers on customer accounts. HT162; 90-92; 15 1-153; 156. The Complainant further testified that during 1996 and 1997, she applied for various Agency job vacancies but was not selected.2 HT76-77; 82-86.
The Complainant’s described denials of work/training assignments in the Systems Office and/or various non-selections occurred over a period of years during which time the Complainant presently acknowledged that she had only a suspicion, i.e., a "connection," that RMO Bonta was somehow directly involved in all work-related personnel matters3 affecting the Complainant. HT163-1641n.2; 85-86;111-113.
While personal speculation is understandable, it does not constitute credible proof that RMO Bonta was directly and/or indirectly involved with the decision-making process concerning all the personnel matters, e.g., work assignments, training, overtime, etc., described by the Complainant. In addition, other than Agency Vacancy Announcement No. OL-RM-08-98, infra, I do not find credible evidence that RMO Bonta was directly and/or indirectly involved with the decision-making process concerning Complainant’s various non-selections during the time period in question.4
VACANCY ANNOUNCEMENT No. OL-RM-08-98
The Complainant applied for the position of "Account Intern" under Agency Vacancy
Announcement No. OL-RM-08-98. HT86-87; ROI p.228. As part of the selection process, the
Agency assembled a three-member Selection Panel (or "Panel"). HT86.
2Note: There is no evidence that the Complainant initiated the Agency’s EEO process, e.g., EEO Counselor contact, with regard to Systems Office job duties, training and/or any of the non-selections referred to in the Complainant’s testimony.
3Note: The phrase "all personnel matters" includes a lack of credible evidence to substantiate allegations of disability discrimination and/or Agency reprisal with regard to Complainant’s written performance reviews and/or alleged denial of overtime.
HT14O-142; 148-149; 158-159; ROl pp.100-101.
4ln addition to a lack of credible evidence of the RMO’s involvement in personnel matters affecting the Complainant (other than Vacancy Announcement No. QL-RM-08-98), I rule in favor of the Agency and dismiss the twelve identified allegations of discrimination as failing to met the forty-five day contact requirement mandated by Commission regulations. See HT16 ln.17-24; 22 InS; 25 ln.1—26; 479-483 In.11-14.
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The three-member Selection Panel ranked a total applicant pooi of fourteen applicants utilizing selection criteria formulated by Supervisor Shea. No applicant interviews were conducted. HT88.
The Complainant further testified that prior to receiving official written notification, Supervisor Shea informed the Complainant of her non-selection notwithstanding the Selection Panel’s number one rank which was assigned to the Complainant. HT89-92. In the fall of 1998, RlvIO Bonta left the Rome, New York facility and several months thereafter, the Complainant was promoted to a GS-7 Intern position. HT93.
Based upon the evidence of record, I find that the Complainant’s testimony to be candid, consistent and highly credible. I find that the Complainant has established a prima facie case of Agency retaliation in that: Complainant engaged in prior protected activities; the RMO was aware of the protected activities; Complainant was not selected for the position in question, and there is a sufficient factual nexus between the adverse treatment and the protected activity. The burden of proof now shifts to the Agency to articulate a legitimate non-discriminatory reason(s) for its personnel decision in this case.
Supervisor Shea became the Chief of the Systems Management Office in March of 1997. HT204-205; 265. In his capacity as supervisor, Mr. Shea reported to Deputy Director Mr. Roy Higgins who in turn reported to RMO Bonta. 206;2 10.
In the summer of 1998, Mr. Shea received permission to hire, within his departmental unit, a
GS-7 "Accountant Intern"and the Agency issued Vacancy Announcement No.OL-RM-08-98 to
accomplish the hiring task. HT225. In accordance with Deputy Director Higgins’ instructions,
Mr. Shea developed written criteria (five questions) and assembled a three-member Selection
Panel which consisted of Supervisor Shea and Messrs. Clifford Deamer and James Fowler.
HT209-21 1 ;214.
Prior to the Panel’s deliberations, Supervisor Shea shared the written criteria with the Agency’s
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personnel office and the deputy director. Neither Deputy Director Higgins or the Agency’s personnel office suggested any changes to Supervisor Shea’s selection criteria. HT212; 216.
A list of fourteen (14) qualified candidates, which included the Complainant, was submitted to the Selection Panel for its review. HT212; 259. Since no applicant was interviewed, each Panel member worked individually and ranked all fourteen applicants in accordance with the selection criteria. HT2 1 9;22 1. At the conclusion of the ranking process each Panel member rated the Complainant as the number one candidate for the position in question. HT221-222;248.
Supervisor Shea delivered the Selection Panel’s rankings, which listed the Complainant as the number one candidate and the eventual selectee as the number four candidate, to Deputy Director Higgins. HT214;220233;252. Approximately one week after submitting the Panel’s rankings, RMO Bonta requested to personally meet with Supervisor Shea to discuss the qualifications of the Complainant and the eventual selectee. HT238-239;252-253.
During the course of the supervisor s one-on-one meeting with RMO Bonta, Supervisor Shea emphasized that he didn’t know the identity of the ‘selecting official’ (i.e.. the individual who had the authority to select the successful applicant under the Vacancy Announcement) and only learned that the selecting official was Deputy Director Higgins as a result of a conversation with the Agency’s attorney in 1999 Id~ see also HT250.
Supervisor Shea described his meeting with RMO Bonta by stating that the RMO didn’t say "...an awful lot...." but did make "...an initial comment about panel criteria being sort of narrow." HT239 ln.24; 240 in. 1-2. According to Supervisor Shea, "He [Bonta] didn’t explain whatsoever what that meant...[and]...I [Shea] didn’t ask him what it meant. I just rambled right into the other candidate’s background...." HT240 ln.2-4. RMO Bonta also stated he was unfamiliar with the selectee’s work background although RMQ Bonta had access to all application forms and other pertinent information. HT240; 242 ml 7-20;25 1.
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Upon the meeting’s termination, Supervisor Shea testified that RMO Bonta did not provide any further instructions and did not direct Supervisor Shea to do any follow-up although, in the words of Supervisor Shea, "...[H]e [Bonta] may have thought he did...." HT242-243 ln.2-3. Later, Supervisor Shea briefed Deputy Director Higgins regarding the positive attributes of both the Complainant and the eventual selectee. HT304-305.
While Supervisor Shea did not recall telling the Complainant that RMO Bonta had taken the selection process.out of the supervisor’s hands, Supervisor Shea acknowledged that, in November/December of 1998, he rated the Complainant as a number one candidate subsequent to RMO Bonta’s departure in October of 1998. As a result of the ranking, the Complainant was promoted to a GS-7 Intern position. HT3 14-31 6;3 19-321. Other than the Selection Panel and his ‘positive’ briefings to RMO Bonta and Deputy Director Higgins, the basic thrust of Supervisor Shea’s testimony was that he had no further involvement with the instant selection process.HT305-306.
RMO Bonta testified that he was aware of the Complainant’s previous EEO complaint, was involved in the Agency’s EEO settlement agreement and met with the Complainant on November 2nd to discuss the settlement arrangements. HT329; 332. -
RMO Bonta admitted that it was not his practice to transfer employees simply because of "unhappiness" but denied that he informed the Complainant that she would not be promoted because the Complainant was not a team player. HT332 ln.9; 334;339. RMO Bonta also denied stating to the Complainant that her EEO claim exhibited a "bad attitude" toward management. HT334 ln.25; 335 ln.1.
RMO Bonta testified that Deputy Director Higgins was the designated selecting official. HT349.
unless he was the selecting official and/or where higher grade positions were involved. HT343-344. RMO Bonta admitted that no precedent existed at the Rome, New York facility, in which
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written selection criteria was amended subsequent to being utilized by a selection panel. HT353.
In response to the question, "What was the Steve Bonta philosophy of making selections?," RMO Bonta described a selection process that was "fair and open and honest... [and]...we would select the best candidates, regardless of the area [department] that they worked in...." HT375 ln.5-6&14-l7;382.
Armed with his personal philosophy, RMO Bonta was emphatic to conclude Supervisor Shea had somehow favored his own departmental/unit employee, i.e. the Complainant, to the detriment of all other applicants. HT376-377. However, RMO Bonta acknowledged that the position in question marked the very first vacancy within Supervisor Shea’s departmental unit. Id.
Nevertheless, RMO Bonta determined that he was not "...comfortable with the criteria that the [selection] panel had used." HT354 ln.19-20. RMO Bonta communicated his concerns regarding the Panel’s selection criteria in what the RMO himself described as a single "less-than-60-second conversation" with Deputy Director Higgins, the selecting official. HT349 in. 19-20.
In express contrast to Supervisor Shea’s testimony, RMO Bonta testified that Supervisor Shea was instructed to "...re-look at the criteria that the panel used." HT349;350 ln.6 -7 ;3 52. In further contrast with Supervisor Shea’s testimony, RMO Bonta testified he had a second-meeting with Supervisor Shea at which time the supervisor stated "...he [Shea] had re-looked at the criteria and told me the information about [the selectee]." HT355 ln.23-24. RMO Bonta admitted that he did not know whether or not Supervisor Shea actually drafted new selection criteria for the position in question. HT3 64.
Again in stark contradiction with the supervisor’s testimony, the RMO testified that at their second-meeting, Supervisor Shea expressly agreed that the selectee, and not the Complainant, was the better qualified candidate for the position in question. HT355-3 56. However, RMO Bonta admits that he did not review the candidates’ Knowledge, Skills and Abilities ("KSA")
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forms although the KSA’s were available for review. HT356;362. RMO Bonta also specified that other than his sixty-second conversation with Deputy Director Higgins regarding the Panel’s selection criteria, he did not disclose to Mr. Higgins the contents of the RMO’s conversations with Supervisor Shea concerning the selectee. HT357.
For his part, Deputy Director Higgins testified that he instructed Supervisor Shea to formulate written selection criteria and to assemble a Selection Panel to fill the position in question. Deputy Director Higgins also stated that he had no input in formulating the Selection Panel’s written criteria. HT4 10-412.
Deputy Director Higgins admitted that the Selection Panel had ranked the Complainant as the number one candidate and the eventual selectee had been ranked number four. HT4 12. The deputy director could not recall if he had expressed any concerns regarding the Panel’s final candidate rankings. HT413-414.
Deputy Director Higgins reviewed the Panel rankings and then instructed Supervisor Shea to met with RMO Bonta. HT4 14. The deputy director did not attend the meeting between Supervisor Shea and RMO Bonta. Id. Neither could the deputy director recall whether he had any discussions with RMO Bonta regarding the meeting with Supervisor Shea. Id.; see also 11T4 18 ln. 19-21 ;420-42 1.
Deputy Director Higgins admitted that it was he who decided to unilaterally cancel the Panel’s selection criteria and rankings. HT415-416;422. The deputy director denied that RMO Bonta gave instructions to change the Panel’s recommendations for the position in question. HT441-415.
Instead, the deputy director testified that he reviewed and evaluated what the Selection Panel had done and then re-evaluated the CP and selectee in terms of experience "...and all those things in terms of working towards picking the best candidate." HT4 15 ln.20-2 1. Furthermore, the deputy
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director’s decision to set aside the Panel’s criteria and rankings "...pretty much ruled our everything the [selection] panel did because I [Higgins] did not think it took into account everything it needed to take into account." HT416 ln.3-7; 422;438.
As with RMO Bonta, Deputy Director Higgins was emphatic in his stated belief that Supervisor Shea’s selection criteria unfairly favored applicants from the supervisor’s departmental unit, e.g., the Complainant, although the vacancy in question was a first-time experience for Supervisor Shea. HT 423-424. When questioned ‘why’ a new selection criteria wasn’t formulated and applied in this matter, Deputy Director Higgins simply surmised that it was "busy times" and although "...it may have been a good idea to do.. .1 did not consider doing that." HT424 ln.23 & 424 ln.1-2.
As a result, the deputy director elected to ignore any written selection criteria and simply compared the Complainant’s and the selectee’s "...experience, the work levels, and those kinds of things to-to work to pick the best candidate...." HT416 ln.1 1-12. When asked ‘why’ the entire applicant pool wasn’t re-evaluated utilizing the deputy director’s articulated "experience level" factor, Deputy Director Higgins’ demeanor as a witness became visibly flushed, hesitant, perplexed and extremely apprehensive during the course of the following exchange with this administrative judge:
AJ: "My question to you is, as far as you were concerned, this [selection] panel didn’t do the job they were supposed to do, is that correct?
AJ: "They reviewed some 15 applicants, is that correct?"
AJ: "All right. So, you’re looking at a group of 15 people who, in your opinion, were incorrectly reviewed by this panel, is that correct?"
Higgins: "Can you—can you ask that question again?"
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AJ: "It’s your—it was you decision that this panel did not correctly review the group of applicants that it was requested to review, is that correct?"
Higgins: "That has to be true, yes."
AJ: "All right. So then when you got this list, and you concluded, you know what, in my opinion, the panel didn’t do the appropriate job in ranking these people, I would assume that goes for each and every candidate in the pool, is that correct?
Higgins: "As you mentioned, probably that could be."
AJ: "So, let me ask you a question. Why did you focus in on specifically Ms. Johnson [Complainant] and [the selectee] for your process of evaluating over and above what the panel had done?"
Higgins: "Because to the best of my remembrances, that Ms. Johnson and [the selectee] were in the top group there, and as you’re the selecting official, a panel, you know, refers X number of names for you to consider, and, so, I took that—those and considered those two."
AJ: "You were relying on what the panel had ranked after all? Is that what you’re saying?"
Higgins: "Yes, on—on that part." HT458 ln.1O-25;459 ln.1-22 see also HT454-457.
As stated earlier, in rejecting the Panel’s recommendations, Deputy Director Higgins testified that he considered "experience level" in computer software systems in comparison between the selectee and the Complainant. HT417-4 19; 457. The deputy director also took into consideration the selectee’s status as a former Army sergeant. Id. However, the deputy director admitted that he was unaware if the computer software programs he considered important had been listed in either the Agency’s Vacancy Announcement or had been included as part of the Panel’s selection criteria. HT448-449.
It is also noted that in reaching his conclusion that the selectee was in fact the better qualified candidate, Deputy Director Higgins admitted that he did not review the Panel’s written selection criteria, the Vacancy Announcement nor could he recall it he actually reviewed the candidates’ KSA’s. HT4 16; 417; 422; 426-427; 455-456; 460.
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In lieu of reviewing applicant documentation for himself, the deputy director explained that he relied exclusively upon the oral information provided by Supervisor Shea in his capacity as "lead of the panel." HT456 ln.23-24;418; 436; 447; 455- 456 ln.6. Deputy Director Higgins also acknowledged that shortly after RMO Bonta’s departure from the Agency’s Rome facility, the deputy director promoted the Complainant to a GS-7 Intern position. HT426.
Based upon witness credibility and the documentary evidence of record, I find the individual and combined testimony of Messrs. Higgins, Bonta and Shea equates to a deliberate and concerted attempt to fabricate a pretextual explanation for Complainant’s non-selection. In short, I find that the Agency attempted to disguise otherwise illegal conduct with tacit catch-phrases such as ‘selection philosophy,’ ‘best qualified’ and ‘uncomfortable selection criteria.’
There is clear and convincing evidence that the managerial officials in this matter made an all out effort to cover-up a deliberate act of Agency reprisal. While some may characterize such efforts as ‘towing the company line,’ in the area of employee civil rights, such efforts can only be labeled as illegal tactics and clear- examples of unfettered managerial abuse.
As a witness at hearing, Deputy Director Higgins was highly evasive, ambiguous in his responses to straightforward questions and utterly feeble in his repeated attempts to engage in ‘oral sparring’ during his examination under oath. Examples of less than candid responses from Mr. Higgins as a witness includes the following: "[W]hen you say ‘work it,’ can you define what you mean by ‘work it’?" HT392 ln.14-15; 389-393; 396 ln.14; 397 ln.22; "...what do you mean by ‘override’?" HT4O1 ln.18-19; 400 ln.18-19; see also 404 ln.17-18; "Can you ask the question again?" HT 401 ln.22; "I—can you ask the question again?" HT403 ln.12; "That’s a pretty broad question." HT408 ln. 1; "When you say ‘staff,’ you need to clarify what you mean by ‘staff." HT409 ln.20-2 1.; "Ask the question again, please." HT409 ln.25.; "Can—can you ask the question again?" HT413 ln.14; "Can you repeat the question?" HT414 ln.24; "When you say ‘original posting’, what does that mean?" HT416 ln.21-22; "What was the beginning of the question?" HT420 ln.1 1; "Can you repeat the question?" HT 421 19; "Can you ask the question again?"
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HT424 ln.6; "You need to ask that question again." HT426 in. 16; "What—what—what do you mean by ‘unusual’?" HT427 ln.lO-1 1; "Say—say the question again." HT428 ln.20; "Okay. Can you ask the question again." HT429 ln.24; "Can—can you ask the question again?" HT434 lnl3; "Can you repeat that question?" HT445 in. 1; "Okay. Can you repeat the question, please?" Id. ln.25; "If you could ask that again?" HT448 ln.23 and "Can you—can you ask that question again?"HT458 ln.20-21.
Overall, the combination of the deputy director’s demeanor and perfunctory comments (such as he was ‘too busy’ to develop new selection criteria in this matter) as well as the deputy director’s visible frustration in his attempt to provide a reasonable explanation as to ‘why’ he failed to reevaluate the entire applicant pool, mandates the inevitable conclusion that Mr. Higgins was less than truthful in describing his underlying motivation regarding the Complainant’s non-selection.
Moreover, based upon the totality of the facts and circumstances presented, it is impossible to accept the sincerity of either RMO Bonta or Deputy Director Higgins’ testimony that they elected to ignore available applicant documentation and instead relied exclusively upon the one individual whom they both charged with unfair favoritism, i.e., Supervisor Shea.5 This unbelievable scenario, coupled with an alleged ‘sixty-second’ conversation between Mr. Higgins and RMO Bonta concerning the practice of ‘favoritism’ within the Agency’s selection process, stretched the credibility of both the RMO and the deputy director to a point beyond factual repair.
As such, it is evident that the deputy director’s articulated reasons for the Complainant’s non-selection is nothing more than a post-selection pretextual attempt to merely cite obvious differences in ‘experience’ as between the selectee and the Complainant. HT41 9; 431-437; ROI p.197.
With regard to Supervisor Shea’s overall testimony, it is painfully clear that the supervisor
5Under the facts and circumstances presented, it is equally implausible to accept as true the supervisor’s testimony that he was unaware that the deputy director was in fact the selecting official in this matter.
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intended to shoulder the entire blame for producing a "flawed" selection criteria in this matter; a ‘flaw’ which was conveniently brought to Supervisor Shea’s attention by RMO Bonta and Deputy Director Higgins.6
Indeed, without prompting or apparent need, Supervisor Shea’s constantly echoed his personal fault and neophyte status to such an extent that the supervisor’s testimony became artificial, rehearsed and rather unconvincing. Examples of Supervisor Shea’s mea culpa testimony includes the following: "As I said, this was the first time I ever participated on a panel. It was also the first time I ever adjusted, tailored in any way, prior panel [selection] criteria." 1-1T222 ln.23-25; 223 ln.l; "I didn’t know." 259 ln.18; "[R]ookie panel head" HT224 ln.1-2; "[W]asn’t a very good job. It didn’t measure...." 224 ln.1O-1 1; "These five questions are not enough to distinguish the full background of 14 different people [applicants]." 226 ln.19; "[I] made the mistake, and I was the best person later on to realize what I did wrong." l-1T227 ln.20-22; "Flawed as it was." 227 ln. 15; "I don’t think these questions are very good for future [Office] Systems people." HT3 15 ln.8-9; "[lit [criteria] doesn’t say anything." HT255 ln.14; see also 11T223-225; 227-228.
Accordingly, based upon the evidence of record and my findings as to the credibility of Witnesses at hearing, I find that the Agency’s articulated reasons for Complainant’s non-selection to be unworthy of belief and represent a calculated attempt to formulate pretext to cover illegal retaliatory conduct.
Therefore, for the reasons stated here-to-fore, I conclude that the Complainant proved, by a preponderance of the evidence, that she engaged in protected activity and that the Agency retaliated against the Complainant when she was not selected for the Intern position under Agency Vacancy Announcement No. OL-RM-08-98.
6Supervisor Shea admits that he had no reason to believe that the selection panel was unfair in its ranking of the applicant pool. HT245.
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COMPENSATORY DAMAGES AND ATTORNEY FEES
Complainant moves for the following monetary awards:
a) $300, 000 in compensatory damages for Complainant’s emotional pain, suffering and loss of enjoyment of life, and
b) Attorney fees in the amount of $48, 017.00 and costs in the amount of $880.90.
The Agency objects to the Complainant’s claim for compensatory damages on the grounds that the Complainant’s supportive medical documents are dated April 14, 1999 which post-dates the Complainant’s actual promotion to the GS-7 Intern position which occurred in February of 1999. In addition, the Agency object to certain portions of the attorney fees schedule on the ground that the legal work was not "germane" to the instant case and/or "unnecessary."7
With regard to the issue of monetary damages, it is noted that the U.S. Congress elected to provide federal agencies with complete immunity from any monetary award for punitive damages where, as in the instant case, a willful violation of Title VII has been proven by a preponderance of the evidence. Instead, the Commission is only authorized to award compensatory damages against federal agencies for pecuniary and non-pecuniary losses, including, but not limited to, emotional pain and suffering, mental anguish, inconvenience, loss of enjoyment of life, embarrassment and humiliation, injury to character and reputation, and loss of health. See Section 102(a) of the 1991 Civil Rights Act; see also West v. Gibson, 119 S. Ct. 1906 (1999).
In order to recover compensatory damages, the Complainant must prove through appropriate evidence and documentation that she was harmed as a result of the Agency’s violation of Title VII; the extent, nature and severity of the harm suffered; and the duration or expected duration of
7"complainant’s ApplicatiOn for Compensatory Damages and Attorney’s Fees" dated December 28, 2001, the "Agency’s Rebuttal to Complainant’s Request for Attorney Fees, Costs and Compensatory Damages" dated September 19, 2001 andthe Complainant’s rebuttal letter dated September 26, 2001, are incorporated by reference and made part of the record herein.
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the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 1995); Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996); see also EEOC Notice No. N 915.002 (July 14, 1992)(compensatory damages under section 102 of the Civil Rights Act of 1991).
Compensatory damage awards are limited to the sums necessary to compensate the Complainant for the actual harm, even if intangible, suffered as a result of the Agency’s discriminatory acts. Id at 13~ see also Carter v. Duncan-Hiagins. Ltd., 727 F. 2d 1225 (D.C. Cir. 1984). Although a monetary award should reimburse the Complainant for proven past and future pecuniary losses and non-pecuniary losses, there are no precise formulas for determining the actual dollar equivalent for a particular non-pecuniary harm. Nonetheless, the Agency is responsible for damages that are clearly shown to be caused by the Agency’s discriminatory conduct. Vereb v. Department of Justice, EEOC Appeal No. 01990136 (June 11, 1999), citing; Fazekas v. United States Postal Service, EEOC Appeal No. 01954627 (April 7, 1997).
An award for non-pecuniary losses, including emotional harm, should reflect the extent to which the Agency’s actions directly or proximately caused the harm and the extent to which other factors may have caused the harm. Schrahl v. Department of Veterans Affairs, EEOC Appeal No. 01961614 (December 15, 1999). The amount awarded should not be "monstrously excessive standing alone, should not be a product of passion or~.. .ce, and should be consistent with amounts awarded in other similar cases. ee Cy~nar v. Ci~ of Chicago, 865 F. 2d 827, 848 (P" Cir. 1989), EEOQv. AIC Security Investigations. Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
In support of her request for compensatory damages, the Complainant may submit a statement outlining her emotional pain or suffering, statements from others, including family members, friends or health care providers who could provide information regarding outward manifestations or physical consequences of emotional distress (i.e., sleeplessness, anxiety, stress, depression, humiliation, etc.), as well as documentation indicating actual out-of-pocket expenses (i.e., bills
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for medical or psychological counseling, etc.). Cane v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). In determining an appropriate monetary award, guidance is provided by Commission decisions in both similar and comparative cases.8
In the instant matter, I have already determined that the Complainant failed to prove that she was subject to a continuous pattern of discrimination (reprisal and/or other illegal basis) during the intervening years between the Complainant’s one-on-on office conversation with RMO Bonta on November 2, 1995, and the Complainant’s subsequent non-selection in September of 1998. See discussion at p.9 and footnotes #2, #3 & #4, supra.
Thus, for purposes of damages, the instant case only involves a manager’s oral threat to retaliate and the subsequent act of actual retaliation, i.e., Complainant’s non-selection. It is also undisputed that subsequent to the Complainant’s non-selection, she was promoted to an Intern position several months thereafter.
I have reviewed the Complainant’s affidavit submitted in support of compensatory damages dated August 16, 2001, the attached medical memoranda which describe the Complainant as having a history of reflux disease which is "not very serve" and "some heartburn as well as well as two (2) affidavits of Complainant’s personal friends who, among things, explained that the Complainant had reported her frustration at her lack of job promotion at the Agency. See Complainant’s December 28, 2001 application for damages at attachments.9
8See Lawrence V. United States Postal Service, supra, ($3,000.00 award where the evidence primarily consisted of the complainant’s testimony of irritability, anxiety, and being shunned by her co-workers); Miller v. United States Postal Service, EEOC Appeal No. 01956109 (January 23, 1 998)($7,500.00 award based on a "scant amount of evidence" of emotional distress); Schrahl v. Department of Veterans Affairs, supra, ($1,500.00 based on one incident of sexual harassment); Robison-Matheson v. Social Securitv Administration, EEOC Appeal No. 01961574 (October 23, 1 998)($2,000.00 award where medical evidence found inadequate and only other evidence from the complainant); White v. Department of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997)($5,000.00 award based on brief comments from the complainant and his psychologist). In comparison, in cases with adequate medical documentation and/or statements from friends, relatives, co-workers, etc., monetary awards were larger. See Jackson v. United States Postal Service, EEOC Appeal No. 01972555 (April 15, 1999) ($30,000.00 award); McCann v.~ Department of the Air Force, EEOC Appeal No. 01971851 (October 23, 1998) ($75,000.00 award); Lam v. Department of Agriculture, EEOC Appeal No. 01961589 (June 11, 1998)($18000.00 award).
9Note: medical quotations are taken from the attachments to Complainant’s affidavit in support of damages and are dated September 11, 2000 arid August 16, 2001 (facsimile date), respectively.
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Based upon my finding that the Complainant was subjected to the Agency’s oral disclosure that notwithstanding her number one candidate rank she had been rejected for the position in question, I also find that such an oral disclosure produced and resulted in some physical and emotional impact on the Complainant’s overall well-being at work and in her personal life. This psychical/emotional impact lingered at least through RMO Bonta’s departure from the facility and the Complainant’s subsequent promotion to the GS-7 Intern position.
Accordingly, based upon my review, the Complainant is awarded compensatory damages in the amount of $3,500.00.
With regard to Complainant attorney fees and costs, I agree with the Complainant’s September 26, 2001, basic rebuttal arguments that it was not unreasonable for Complainant’s attorney to thoroughly investigate other claims of employment discrimination against the same Agency facility in order to determine their legal and/or probative value to the instant case.’0 In addition, other than the Agency’s hindsight opinion that certain legal work was "unnecessary," I agree with the Complainant’s stated observation "...that it was both reasonable and proper for complainant’s counsel to protect her rights by pursuing the appeal." See fn.#7.
AWARDOF DAMAGES AND REMEDIAL RELIEF
Based upon the totality of the facts, circumstances, findings and conclusions heretofore described, the following award of damages is hereby issued:
1. Complainant is awarded all back pay, and corresponding benefit adjustments with interest retroactive to the date of the non-selection in question;
2. Complainant is awarded compensatory damages in the amount of $3, 500.00, and
~~CompIainant’s September 26, 2001 letter in rebuttal is incorporated by reference and made part of the record herein.
3. As the prevailing party in this action, Complainant is awarded attorney fees in the amount of
$48, 017.00 and costs in the amount of $880.90.
In addition, as remedial relief designed to correct the Agency’s violations of Title VII in this case, the following corrective action is issued:
4. The Agency shall conspicuously post for a period of not less than sixty (60) consecutive calendar days a notification to all employees at the affected facility of their legal rights to be free from unlawful discrimination with particular Agency assurance that employees are to be protected from any Agency act(s) of illegal retaliation, and
5. Within ninety (90) calendar days, the Agency shall provide appropriate remedial EEO training to all management staff at the facility in question but at a minimum to the following managerial officials: Steven R. Bonta; James T. Shea and Roy Higgins.
DATE: November 4, 2002
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This is a decision by an Equal Employment Opportunity Commission Administrative Judge issued pursuant to 29 C.F.R. §1614.109(b), 109(g) or 109(i). EEOC regulations require the Agency to take final action on the complaint by issuing a final order within 40 calendar days of receipt of the hearing file and this decision. The Agency’s final order shall notify the complainant whether or not the Agency will fully implement this decision, and shall contain notice of the complainant’s right to appeal to the Commission, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit and the applicable time limits for such appeal or lawsuit. A copy of the Final Order shall also be provided to the Administrative Judge.
With the exception detailed in the next paragraph, complainant may not file an appeal to the Commission directly from this decision. Rather, complainant may appeal to the Commission within 30 calendar days of receipt of the Agency’s final order concerning its implementation of this decision, If the final order does not fully implement this decision, the Agency must also simultaneously file an appeal to the Commission in accordance with 29 C.F.R. §1614.403, and append a copyof the appeal to the final order. A copy of EEOC Form 573 must be attached to the final order.
Complainant may only appeal directly from this decision in the event that the Agency has not issued its final order within 40 calendar days of its receipt of the hearing file and this decision. In this event, the complainant should append a copy of the Administrative Judge’s decision to the appeal. The complainant should furnish a copy of the appeal to the opposing party at the same time it is filed with the Commission, and should certify to the Commission the date and method by which such service was made on the opposing party. All appeals to the Commission must be filed by mail, personal delivery or facsimile to the following address:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 19848, Washington, D.C. 20036
Fax No. (202) 663-7022
Facsimile transmissions over 10 pages will not be accepted.
For further guidance regarding appeals, the parties may consult 29 C.F.R. §1614.401 et sea. and Chapter 10 of the Commission’s Management Directive-hO. These documents are available on the EEOC’s website at EEOC.GOV.
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COMPLIANCE WITHAN AGENCY FINAL ACTION
Pursuant to 29 C.F.R. §1614.504, an Agency’s final action that has not been the subject of an appeal to the Commission or civil action is binding on the Agency. If the complainant believes that the Agency has failed to comply with the terms of its final action, the complainant shall notify the Agency’s EEO Director, in writing, of the alleged noncompliance within 30 calendar days of when the complainant knew or should have known of the alleged noncompliance. The Agency shall resolve the matter and respond to the complainant in writing. If the complainant is not satisfied with the Agency’s attempt to resolve the matter, the complainant may appeal to the Commission for a determination of whether the Agency has complied with the terms of its final action. The complainant may file such an appeal within 30 calendar days of receipt of the Agency’s determination or, in the event that the Agency fails to respond, at least 35 calendar days after complainant has served the Agency with the allegations of noncompliance. A copy of the appeal must be served on the Agency, and the Agency may submit a response to the Commission within 30 calendar days of receiving the notice of appeal.
-END OF HEARING DECISION-
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