0120101426
07-27-2010
Alan L. Doerman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Alan L. Doerman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101426
Agency No. 200L06352009102578
DECISION
On February 5, 2010, Complainant filed an appeal from the Agency's January
12, 2010, final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a GS-13 Clinical Psychologist with the Agency when he applied for the
position of Psychologist, Operation Enduring Freedom - Operation Iraqi
Freedom at the Agency's Medical Center Office facility in Oklahoma City,
Oklahoma (hereinafter "Position"). The record indicated that Complainant
has a Bachelors, Masters and Doctoral Degrees, Board Certification, and
publication credits all in the field of psychology. In addition, in
1987, Complainant co-authored an article on Post-Traumatic Stress Disorder
(PTSD) in the Psychiatric Journal of the University of Ottawa. His
experience included twenty years of experience as Commander or Chief of
Psychological Services/Mental Health Flight Service with the Air Force.
Complainant applied for the Position. He and the Selectee (29 years old
during the relevant time) were two of six individuals who were placed
on the best qualified list. The record showed that Selectee also had
a Bachelors, Masters and Doctoral Degrees in psychology; however no
Board Certification like Complainant. The record indicated that the
Selectee worked from 2005-2008 with patients who suffered from PTSD.
Both applicants were interviewed for the Position. The Panel ranked
Complainant second with a score of 167 and Selectee first with a score of
180. The Recommending Official (RO) chose the Selectee for the Position.
The Selecting Official (SO) adopted the recommendation and the Selectee
was given the Position.
When Complainant was informed of the Agency's decision, he contacted the
RO who indicated that the decision was very tough and that he and the
Selectee were both very qualified for the position. Complainant informed
his supervisor (Supervisor) of the decision. The Supervisor contacted
the RO. She indicated that the RO noted how difficult the selection
process was and that both candidates were outstanding. However, the
RO informed the Supervisor that he selected the Selectee because he
was "young" and current staff in the office of the Position would be
retiring about the same time. Therefore, for the sake of the future of
the program, the RO wanted someone like the Selectee who was younger
who they hoped would stay round a long time. The Supervisor informed
Complainant of her conversation with the RO.
Believing that the Agency's decision was based on age discrimination,
Complainant contacted the EEO Office. On May 16, 2009, Complainant filed
an EEO complaint alleging that the Agency discriminated against him on
the basis of age (59 years old at the time of the alleged discrimination)
when, on April 7, 2009, Complainant was not selected for the position
of Psychologist, Operation Enduring Freedom - Operation Iraqi Freedom
(OEF-IOF), under Vacancy Announcement No. T-38-09-042.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
The Agency's final decision determined that Complainant established a
prima facie case of age-based discrimination. The decision went on to
find that the Agency provided legitimate, nondiscriminatory reasons for
the selection of Selectee. The RO noted that the Selectee had recent
and extensive experience with combat veterans while Complainant had
more general experience. The Agency then turned to Complainant to show
that the Agency's reasons were pretext for discrimination. The final
decision noted that the Supervisor provided evidence that the Selectee
was chosen because of his age. However, the final decision concluded
that the record supported the RO's reasons for its decision to select
the Selectee for the Position at issue. Accordingly, the final decision
concluded that Complainant failed to show that he was subjected to
age-based discrimination.
CONTENTIONS ON APPEAL
This appeal followed. Complainant appealed asserting that he had a
"smoking gun." Complainant indicated that the Supervisor spoke with
the RO who told her that it was a difficult decision and that both
candidates were qualified for the position. However, the RO informed
the Supervisor that he selected the Selectee because he was "young."
Based on the record, Complainant believed that he provided sufficient
evidence to show that the selection process for the Position was marred
by age-based discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
After careful review of the evidence of record and the arguments submitted
by the parties on appeal, the Commission concludes that Agency's final
decision erred. Specifically, we find that the final decision failed to
recognize that this is a case where Complainant offered direct evidence
that the RO made a statement to the Supervisor establishing that age
was a motivating factor in the decisions not to select Complainant. By
overlooking this direct evidence, the final decision applied the incorrect
legal analysis to the evidence of record.
"Direct evidence" may be any written or verbal policy or statement
made by a management official that on its face demonstrates a bias
against a protected group and is linked to the complained of adverse
action. See EEOC Revised Enforcement Guidance on Recent Developments in
Disparate Treatment Theory, No. 915-002 (July 12, 1992). A link between
the evidence of bias and the challenged employment action can be shown
if the biased statements were made by the decision maker or one who
was involved in the decision, at or around the time the decision was
made, even if the biased remarks were not specifically related to the
particular employment decision at issue. Id., footnote 8. When there is
direct evidence of discrimination, the circumstantial evidence analysis
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
is inapplicable. See Carson v. Dept. of Veterans Affairs, EEOC Appeal
No. 01871596 (January 19, 1988).
The record included an affidavit from the Supervisor. She stated that
she was very surprised that Complainant had not been selected for the
Position. She noted that part of her shock was because Complainant was
Board Certified while the Selectee was not. The record also included
an email from another management official in Complainant's office who
also stated her surprise as to the selection. Both management officials
expected to make plans to fill Complainant's position when he left for the
Position in question. Based on management's reaction to the selection
decision by the RO, the Supervisor contacted the RO for an explanation.
The Supervisor averred that the RO told her that it was a difficult
decision and that both candidates were outstanding. She went on to
state that the RO informed the Supervisor that he selected the Selectee
because he was "young" and current staff in the office of the Position
would be retiring about the same time. Based upon the statement by the
Supervisor and the email from the other management official, we find
that Complainant has met his evidentiary burden of establishing that
age was in fact the deciding factor in RO's decision not to recommend
Complainant for the position which resulted in his non-selection.
Once a conclusion is drawn that an impermissible factor played a
motivating part in an employment decision, the burden shifts to the
employer to prove by a preponderance of the evidence that it would have
made the same decision even if it had not considered the impermissible
factor. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258 (1989).
Prior to the Civil Rights Act of 1991 (CRA), an employer could avoid
liability in mixed motive cases if it could show that it would have
made the same decision even absent the unlawful factor. Id. However, the
CRA effectively overruled the part of Price Waterhouse that allowed an
employer to avoid liability in this way. The CRA added Section 703(m)
to Title VII, making it clear that a violation is established when
a complaining party demonstrates that "race, color, religion, sex, or
national origin, was a motivating factor for any employment practice, even
though other factors also motivated the practice." 42 U.S.C. � 2000e-2(m).
However, in the case at hand, age discrimination is involved and the
CRA did not amend the Age Discrimination in Employment Act. The rule
of Price Waterhouse still applies to age discrimination cases and the
Agency can avoid liability altogether if it establishes that it would
have made the same decision even absent discrimination. Kubik v. Dept. of
Transportation, EEOC Appeal No. 01973801 (July 9, 2001); see also Telez
v. Depart. of the Army, EEOC Request No. 05A41133 (March 18, 2005).
As noted above, the RO indicated that Complainant was an outstanding
candidate for the Position and had excellent experience. The RO even
stated in his affidavit that Complainant could even do the RO's job
better than he could based on his administrative experience. However,
based on the Selectee's specific experience with the patient population
and his better responses during the interview, the RO selected the
Selectee. We note that the record also shows that Complainant, too,
had experience with PTSD and combat veteran population. Therefore,
based on the record as a whole, we conclude that the Agency failed to
prove by a preponderance of the evidence that it would have made the same
decision even if it had not considered the impermissible factor of age.
As such, we find that the Agency has not established that it would have
made the same decision even absent discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the Agency's
final decision and REMAND the matter for further processing in accordance
with the ORDER below.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
1. The Agency shall offer Complainant the position of Psychologist,
Operation Enduring Freedom - Operation Iraqi Freedom (OEF-IOF), under
Vacancy Announcement No. T-38-09-042 effective April 7, 2009.
2. The Agency shall determine the appropriate amount of back pay, with
interest, and other benefits due Complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The Complainant shall cooperate in the Agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the Agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the Agency shall issue a check to the Complainant for the undisputed
amount within sixty (60) calendar days of the date the Agency determines
the amount it believes to be due. The Complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. The Agency is directed to provide EEO training for the responsible
management officials addressing their responsibilities with respect
to eliminating discrimination in the workplace with an emphasis on age
discrimination and the current state of law on employment discrimination.
4. The Agency shall consider taking disciplinary action against
the management officials identified as being responsible for the
discrimination perpetrated against Complainant. The Agency shall report
its decision. If the Agency decides to take disciplinary action, it shall
identify the action taken. If the Agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to impose
discipline.
5. The Agency shall provide a detailed statement of all of its
calculations pertaining to the instant matter to Complainant and the
Commission.
6. 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 backpay and other benefits due Complainant,
including evidence that the corrective action has been implemented.
7. The Agency shall complete all of the above actions within 120 calendar
days from the date on which the decision becomes final.
POSTING ORDER (G0610)
The Agency is ordered to post at its Medical Center Office 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 (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 27, 2010
__________________
Date
2
0120101426
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120101426