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).

A hearing 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.

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

(1983).

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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).

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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

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.

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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

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.

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.

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

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?"

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?"

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

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.

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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

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