0120103492
12-05-2012
Frederick V. Nielsen, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Frederick V. Nielsen,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103492
Hearing No. 510-2009-00137X
Agency No. 2001-0673-2008102693
DECISION
On August 25, 2010, Complainant submitted correspondence to the Commission alleging that the Agency was not in compliance with its August 20, 2010 final order, which implemented the decision of an EEOC Administrative Judge, finding discrimination.1 The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
The record reflects that Complainant, a job applicant, filed a formal complaint on July 28, 2008. Therein, Complainant claimed that he was discriminated against on the bases of age (over 40) and in reprisal for prior protected activity when:
he was not referred and hired for the position of Human Resources (HR) Management Intern, GS-201-9, at the Agency's James A. Haley Veterans Hospital in Tampa, Florida.
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). A hearing held on November 23, 2009. On July 12, 2010, the AJ issued a decision finding that Complainant was discriminated against on the basis of age when he was not referred and hired for the position of Human Resources Management Intern. The AJ found no discrimination on the basis of retaliation.
The AJ ordered the following relief:
1. The Agency shall make a written unconditional offer to Complainant of placement into a GS-201-9 (T-11) HR Management Intern position or a substantially equivalent position similar in duties, responsibilities, and location to the HR Management Intern position which Complainant should have occupied. Complainant shall have 15 days from receipt of the written offer within which to accept or decline the offer. Failure to accept within the fifteen (15) day time period will be considered a decline of the offer, unless Complainant can how circumstances beyond his control prevented a response within the time limit. If the offer of employment is declined, the back pay shall be awarded a sum equal to the back pay Complainant would have received from January 6, 2008 until the date Complainant declined the offer. If the offer is accepted, the appointment shall be retroactive to January 6, 2008, until the date Complainant actually enters on duty.
2. The Agency shall pay Complainant back pay which will be calculated based upon the starting salary for the subject position at $43,731 per annum. The Agency also shall pay Complainant pay any benefits lost as a result of his non-selection.
3. The Agency shall immediately purge from all records any and all reference to or records of Complainant's non-selection.
4. The Agency shall require the HR Staffing and Recruitment Specialist to attend training on the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 633(a). The first EEO training session shall be at least six hours in length (of which at least two hours shall be devoted to disparate treatment issues and at least one hour devoted to the preservation of records requirement) and occur within three months of this decision. The second training session shall take place within twelve months of the first session, but no sooner than nine months after the first training session, and shall be at least four hours in length.
5. The Agency shall post at its James A. Haley Veterans Hospital in Tampa, Florida, 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 immediately upon receipt of this Decision, and shall remain posted for one hundred and twenty (120) 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.
On August 20, 2010, the Agency issued its final order fully implementing the AJ's decision.
On August 25, 2010, Complainant filed the instant appeal to the Commission alleging that the Agency has not complied with its August 20, 2010 final order. Complainant argues that pursuant to the AJ's decision, the Agency should have offered him a job immediately and that the Agency did not extend to him a period of fifteen days in which to accept or reject the offer; the offer was not unconditional because the job offered is in the excepted service; and that the Agency did not post notices at its facility.
In response, the Agency acknowledged that on August 20, 2010, it issued the instant final order implementing the AJ's decision. The Agency stated that Complainant's correspondence to the Commission was exactly five days after its final order was entered. The Agency stated that on September 8, 2010, it made a written unconditional offer of employment as an HR Intern in the same series and with the same pay and technical career field requirements as the position for which Complainant was not selected in 2008. The Agency further stated that the offer was extended in an email message from an Agency attorney who requested that Complainant respond by 4:00 p.m. the following day.
The Agency stated that also on September 8, 2010, Complainant responded to the Agency attorney's email stated that the offer was inconsistent with the AJ's order. Specifically, Complainant noted that the Agency's offer provided he would have fifteen days to accept or reject the offer. Complainant further advised the Agency attorney that he would make his decision regarding the offer within fifteen days. The Agency stated that the next day, September 9, 2010, the Agency attorney responded to Complainant confirming that Complainant would indeed be afforded fifteen days to decide whether to accept the offer of employment and advised Complainant that he could accept the position sooner. The Agency stated that on the same day, the Agency attorney extended the job offer by certified mail with a position description and description of the benefits of federal employment attached.
Complainant's asserted that the written offer was not made immediately and specifically; that the Agency was ordered to make the offer on August 20, 2010; but that it did not make the offer until September 8, 2010. The Agency denied this assertion. Specifically, the Agency stated that it made an offer to Complainant quickly, exactly nineteen days following the AJ's order. The Agency determined that it was in compliance with the AJ's Order requiring it to make a written unconditional offer of employment.
With respect to Complainant's allegation that the Agency did not extend to him a period of fifteen days in which to accept or reject the offer, the Agency denied it. The Agency stated that by e-mail and letter dated September 9, 2010, the Agency attorney confirmed that Complainant would have fifteen days to accept or reject its offer.
The Agency found no merit to Complainant's argument that the offer was not unconditional because the job offered is in the excepted service. The Agency stated that the HR Management Intern position for which Complainant was not selected was also in the excepted service. The Agency further stated that in regard to back pay, Complainant had yet communicated to the Agency whether he would accept or reject its offer.
With respect to Complainant's allegation that he did not see notice posted at the Agency's Tampa, Florida facility, the Agency denied it. The Agency argued that the notices are posted in conspicuous locations at its facility. In support of its assertions, the Agency submitted a copy of the notice signed and dated September 13, 2010, by a Management Official, an affidavit from an EEO Opportunity Specialist attesting that the notice are posted in fourteen locations and a copy of a photograph of one of the posted notices.
The record contains a copy of Complainant's letter dated October 1, 2010 to the Agency. Therein, Complainant stated that the Agency did not comply the AJ's July 12, 2010 Order by posting notices at its Tampa, Florida facility. Complainant further stated that as a consequence of the Agency's failure to post the notices "along with the other incidents I previously cited, I perceive that a hostile work environment exists. I can't help but note; although I was the victim of the unlawful employment practice in this case, I was never offered an apology. Therefore, I will not accept the job offer! Please advise me and [Director], within 10 days of receipt of this letter specifically when the facility will pay me the calculated back pay. Please make your computations with me as the sole dependant and it would be appreciated if the amount would be divided into calendar years for income tax purposes."
Complainant, on appeal, argued that the Agency has yet to pay him backpay as ordered by the AJ in his order.
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
Upon review of the record, we conclude that substantial evidence of record supports the AJ's determination that Complainant proved, by a preponderance of the evidence, that the Agency's proffered reasons for the selection decision were a pretext for age discrimination. Substantial evidence, including the testimonies of Complainant and the HR Staffing and Recruitment Specialist, and the fact that the Agency did not maintain the critical application materials and was unable to provide them to the investigator, Agency management's reasons for choosing the selectee were often unclear or contradicted by other witnesses, supports the AJ's finding that Complainant's qualifications for the subject position were "plainly superior" to those of the selectee.
The AJ also supported her determination that pretext was proven with specific findings that the HR Staffing and Recruitment Specialist was not credible in her testimony at the hearing. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999). Despite the Agency's arguments to the contrary, we find no reason to reject the AJ's credibility determinations in this case made after observing the witnesses during the hearing.
Accordingly, we find that substantial evidence of record supports the AJ's finding of age discrimination and we affirm the finding of liability in this case.
In his Notice of Appeal/Petition dated September 17, 2010, Complainant alleged that the Agency did not present him a job offer "immediately, but until Sept 8 [, 2010] the offer was not written in proper official formal, but via email; the offer was not unconditional, but described it as 'an excepted position for 2 years.'" We find that there was no specific time limit that the Agency was required to make a job offer to Complainant following the AJ's July 12, 2010 decision. We note that while the job offer was in the excepted service, the HR Management Intern position which Complainant was not selected for was also in the excepted service.
The record reflects that by email and letter dated September 9, 2010, the Agency attorney confirmed that Complainant would have fifteen days to accept or decline its offer. Complainant did not notify the Agency of his decision by September 24, 2010. Consequently, we find that Complainant's failure to accept within the 15-day time period is considered a decline of the offer. Complainant failed to show how circumstances beyond his control prevented a response within the time limit.
We note that the Agency argued that because Complainant had yet communicated to them whether he would accept or reject its offer, the Agency had not calculated the backpay. In accordance with the AJ's order, if Complainant declines the offer, the Agency shall award Complainant back pay a sum equal to the back pay which Complainant would have received from January 6, 2008 until September 24, 2010, the day that Complainant was required to notify the Agency of his decision whether to accept or decline the offer. Therefore, the Agency shall pay Complainant backpay from January 6, 2008 to September 24, 2010 and any other benefits lost as a result of his non-selection.
With respect to the portion of the AJ's order concerning the posting of the notice at the Agency's Tampa, Florida facility, we find that the Agency is in compliance. Specifically, we note that the record contains copies of the notice and the EEO Opportunity Specialist's affidavit dated October 18, 2010, stated that the notices were posted in fourteen locations during the relevant period. Therefore, we find that the Agency complied with this portion of the AJ's order.
With respect to the portion of the AJ's order that the Agency was to purge any and all reference to or records of Complainant's non-selection and provide ADEA training for the HR Staffing and Recruitment Specialist, we note there is no evidence in the record that indicating that the Agency is in compliance with these orders. Therefore, the Agency shall purge any and all reference to or records of Complainant's non-selection and provide ADEA training for the HR Staffing and Recruitment Specialist ADEA training.
Accordingly, we AFFIRM the portion of the relief concerning the job offer and the posting of the notice. We REMAND the portion of the relief concerning the backpay and any other benefits, the purging any and all reference to or records of Complainant's non-selection, and training for the HR Staffing and Recruitment Specialist as ordered by the AJ, to the Agency to take remedial action, if still necessary, in accordance with this decision and the ORDER below.
ORDER
The Agency, to the extent that it has not already done so, is ordered to take the following action:
1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall pay Complainant backpay from January 6, 2008 until September 24, 2010 and any other benefits lost as a result of his non-selection.
2. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall immediately purge from all records any and all reference to or records of Complainant's non-selection.
3. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall provide training to the HR Staffing and Recruitment Specialist with regard to the ADEA. The Agency shall assure that the first training session be at least six hours in length (of which at least two hours shall be devoted to disparate treatment issues and at least one hour devoted to the preservation of records requirement) and occur within three months of this decision. The second training session shall take place within twelve months of the first session, but no sooner than nine months after the first training session, and shall be at least four hours in length.
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 evidence that corrective action has been implemented.
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, 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
December 5, 2012
__________________
Date
1 We note that in various portions of the record, Complainant's appeal is identified as a Petition for Enforcement. However, a Petition for Enforcement is only available to enforce an order of the Commission itself. Therefore, we will address Complainant's appeal as a claim regarding the Agency's non-compliance with its own final order, dated August 20, 2010.
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0120103492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103492