0720060093
09-10-2007
Norman E. Logan, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Norman E. Logan,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 07200600931
Hearing No. 320-A5-0222X
Agency No. LLM-05-011
DECISION
Following its September 11, 2006 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).2
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) finding of discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the
Commission REVERSES the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Realty Specialist and Leasing Contracting Officer, Space Leasing Branch,
National Acquisition Center, at the agency's Bureau of Land Management, in
Denver, Colorado. On January 27, 2006, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of reprisal for
prior protected EEO activity (arising under Title VII), when:
1. On September 3, 2004, complainant was not selected for the position of
Supervisory Realty Specialist, GS-1170-13, Vacancy Announcement No. HRMC
Merit-2004-0012; and
2. The agency decided not to create and fill a GS-13 Analyst position
for which complainant would have qualified.3
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on April 25, 2006, and issued
a decision in complainant's favor, on July 27, 2006.
In his decision, the AJ found as follows: complainant engaged in
protected EEO activity when he complained to the Acting Supervisor
regarding the discriminatory treatment of another employee (E1), and when
he gave crucial testimony at the EEO hearing of E1 in February 2004.
Complainant's EEO activity was known to the management official (M1)4
who was responsible for the challenged actions in this case. The AJ
further found that complainant suffered adverse treatment when he was
not selected to the position of Supervisory Realty Specialist, GS-13, and
when M1 did not create an Analyst position for him. The AJ further found
that the causal connection between the protected activity and the adverse
actions was sufficient to support an inference of retaliation.5
The AJ then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the selectee was
chosen because of his "co-location" experience, and because he had worked
in the Washington Office developing policy, and he had a good customer
service approach. Additionally, M1 stated that the selectee had favorable
references, which indicated that he had good interpersonal skills, and
great technical knowledge. M1 also admitted that complainant had more
supervisory experience, but noted that complainant's "interactions with
fellow employees contradicted what he had claimed as his supervisory
approach." The AJ noted that other employees indicated that they had
reservations about complainant's interpersonal attitude and that his
customer service was inconsistent. The AJ noted that M1 stated that
the deciding factor "was recent behavior and just the fact that I would
have found it very difficult given [complainant's] conduct, which I
really don't understand...I couldn't understand why he couldn't buckle
and in the last few months, at least, show me that he could get along
with people and perform."
The AJ then found that complainant established pretext based on the
following: the record evidence indicates that complainant had more
job-related education, training, experience, and supervisory training
than did the selectee, who had no supervisory experience and worked for
a different agency. Additionally, the AJ found that at the hearing, M1
admitted that complainant's objective qualifications were superior to the
selectee's qualifications, and that he did not select complainant because
of his alleged problems or questions with respect to his personality or
people skills. The AJ found however, that there was no documentation in
complainant's evaluations or anywhere else as to complainant's alleged
problems with people skills or his personality. The AJ further noted
that in deciding whether to select complainant, M1 admitted he relied
in part on the opinion of the person who was the responsible management
official in the EEO hearing of E1. The AJ noted that in E1's EEO case,
the AJ found in favor of E1, in part, based on complainant's testimony,
and awarded E1 the maximum amount of compensatory damages allowed by law.
Additionally, complainant provided unrebutted testimony that after he
completed testifying in E1's case, he heard an agency's representative
stated "We're in trouble now." Finally, the AJ found that M1's statement
that if complainant would apologize, he would place him in the Analyst
position, was indicative of retaliatory animus.6 The AJ concluded that
the agency's reasons for all of its actions were a pretext for retaliation
and ordered remedies.7
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that he was subjected to retaliation as alleged.
On appeal, as to the claim that M1 did not create a position for
complainant, the agency contends that this fails to state a claim.
The agency also contends that complainant did not establish a nexus
between his prior EEO activity and his non-selection. The agency
additionally asserts that the AJ erred in allowing the EEO counselor to
testify about what M1 had said to her during her attempt to facilitate a
resolution to the complaint at the informal stage. The agency notes that
it objected to this testimony before and during the hearing. The agency
contends that the AJ also erred in crediting complainant's "hearsay"
statement that at the end of complainant's testimony in E1's hearing,
an agency representative stated "We're in trouble now." The agency
further argues that the AJ erred in failing to acknowledge that all of
the individuals whom M1 consulted before non-selecting complainant,
had reservations about complainant's people skills, and therefore,
complainant would not have been selected regardless of retaliation.
The agency further contends that complainant is entitled to less
than $3,000.00 in non-pecuniary compensatory damages and that the AJ
erred in approving complainant's attorneys' fee petition. The agency
does not dispute the claimed hourly rate, but contends that the core
issues in this case were not overly complex or novel. The agency lists
several examples of fees that were not reasonable or were redundant,
and contends that an across-the-board reduction of fees is required.
The agency requests that the fee award be reduced by 45%, in part,
because complainant withdrew two issues at the hearing. Finally,
the agency contends that it has shown that the case should have been
analyzed under a mixed motive analysis, and that it met its burden under
this analysis of showing that even absent retaliation, complainant would
not have been selected for the position at hand because he had earned
a reputation among his co-workers and supervisors. The agency contends
therefore, that the relief ordered in this case, including instatement
into the position in question, is inappropriate.
In his Opposition Brief, complainant, through counsel, contends that
the AJ's decision and award of remedies was correct, and requests that
we reverse the agency's decision. 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 discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held.
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, � VI.B. (November 9, 1999).
Initially, we note that we agree with the agency, that there is no
adverse action in issue (2), and therefore, it fails to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1). However, we find that it is
harmless error for the AJ to have described claim (2) as a separate
issue, given that the AJ's award of remedies is narrowly tailored to
making complainant whole for the challenged action in issue (1), namely,
the non-selection for the position of Supervisory Realty Specialist,
GS-1170-13, Vacancy Announcement No. HRMC Merit-2004-0012.
In the instant case, the AJ's finding of retaliation as to issue (1)
is supported by substantial evidence in the record. In so finding,
we note that even if we do not consider the testimony of the EEO
counselor concerning M1's statement that he would place complainant in
an Analyst position if complainant would apologize for accusing him
of discrimination, substantial evidence of record still supports the
finding of pretext. Additionally, we note that the agency asserts that
the AJ should have analyzed the claim under a mixed motive analysis.
Specifically, the agency contends that it met its burden of showing that
even absent retaliation, complainant would not have been selected for
the position at hand because the testimony from the selection panel
members was that complainant should not be promoted because of his
interpersonal skills and his reputation among the individuals whom he
would be supervising.
Initially, we note that if the agency wished to argue mixed motive,
it ought to have done so at the hearing stage. The record contains no
indication that the agency raised this argument before appealing the
case to the Commission. Nevertheless, we will briefly address this
argument. Assuming the panel members all recommended that complainant
not be selected, it is quite conceivable that all three panel members
also harbored retaliatory animus against complainant because of his
participation in E1's EEO hearing, and that is why they asserted that
complainant had a bad reputation and/or poor interpersonal skills.
Alternatively, the panel members may have been influenced by the selecting
official when they offered their recommendations. The agency points
out that complainant acknowledged that the panel members were not part
of any discriminatory practices or cliques at the agency. We are not
persuaded by such argument because only the panel members themselves
can know for certain what factors motivated their recommendations not
to select complainant. Moreover, it is not clear that M1's decision
was based solely on the recommendations of the panel members. It is
possible that, absent the retaliation, M1 would have disagreed with the
panel members' recommendations, and would have come to the conclusion to
select complainant. We find that the agency has not made the showing,
by clear and convincing evidence, that absent retaliation, complainant
would still not have been selected.
Compensatory Damages
The AJ awarded complainant $10,000.00 in non-pecuniary compensatory
damages, noting that complainant stated that he suffered emotional
harm, stress and anxiety. The AJ noted complainant's testimony that he
was recovering from cancer surgery, and had diabetes, and that stress
exacerbates these conditions. The AJ also noted that complainant stated
that he wanted to take leave because of the stressful work situation,
but he could not because if he needed another surgery for the cancer, he
would have to take a great amount of leave. The AJ found that this meant
that complainant had to remain in a stressful situation without benefit of
any leave. The AJ concluded that absent the discrimination, complainant
would not have had to suffer the emotional distress he endured.
In a document entitled "Agency's Position on Damages," submitted to the AJ
on or about June 30, 2006, the agency argued that no more than $3,000.00
in non-pecuniary damages was warranted because complainant provided
no expert evidence on compensatory damages, and no evidence at all of
extent or duration. We note that evidence from a health care provider
is not a mandatory prerequisite for recovery of compensatory damages.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). Here, we find that the record evidence supports the
AJ's award of $10,000.00 to compensate complainant for his pain and
suffering. We note that the Commission has awarded compensatory damages
in cases somewhat similar to complainant's case in terms of the harm
sustained. See, e.g., Daniels v. United States Postal Serv., EEOC Appeal
No. 07A30028 (September 3, 2003) ($10,000.00 in non-pecuniary damages
based on complainant's statements of vomiting, anxiety, sleeplessness,
digestive problems and emotional distress resulting from the agency's
discrimination); Batieste v. Department of the Air Force, EEOC Appeal
No. 01974616 (May 26, 2000) ($12,000.00 in non-pecuniary damages based on
complainant's and others' statements of emotional distress due to agency's
discriminatory termination); Thompson v. United States Postal Serv., EEOC
Appeal No. 07A00040 (Sept. 5, 2000) ($10,000.00 in non-pecuniary damages
where complainant established that she suffered emotional and physical
harm as a result of the discrimination); Jones v. Department of Defense,
EEOC Appeal No. 01973551 (April 14, 2000) ($9,000.00 in non-pecuniary
damages based on complainant's statements of the interference with
family and marital relations, digestive problems, headaches, anxiety,
sleeplessness, and exhaustion resulting from the agency's discrimination);
Butler v. Department of Agriculture, EEOC Appeal No. 01971729 (April 15,
1999) ($7,500.00 in non-pecuniary damages based on complainant's testimony
regarding his emotional distress); Hull v. Department of Veterans Affairs,
Appeal No. 01951441 (September 18, 1998) ($12,000.00 in non-pecuniary
damages based on complainant's testimony of emotional distress due to
retaliatory harassment over a two month period).
Attorney Fees and Costs
The Commission, an agency or an AJ may award complainant reasonable
attorney fees and other costs incurred in the processing of a complainant
regarding allegations of discrimination in violation of Title VII. 29
C.F.R. � 1614.501(e). A finding of discrimination raises a presumption
of entitlement to an award of attorney's fees. Id. Attorney's fees
shall be paid for services performed by an attorney after the filing
of a written complaint. Id. An award of attorney fees is determined
by calculating the lodestar, i.e., by multiplying a reasonable hourly
fee times a reasonable number of hours expended. Hensley v. Eckerhart,
461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). "There is a
strong presumption that this amount represents the reasonable fee." 29
C.F.R. � 1614.501(e)(2)(ii)(B). A reasonable hourly fee is the prevailing
market rate in the relevant community. Blum v. Stenson, 465 U.S. 886
(1984). A petition for fees and costs must take the form of the verified
statement required by the Commission's regulations at 29 C.F.R. �
1614.501(e)(2)(i).
The Commission's case law has also stated that a reasonable fee award
may be assessed in light of the following factors, inter alia: (1)
the time required (versus time expended) to complete the legal work;
(2) novelty or difficulty of the issues; (3) the requisite skill to
properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the customary fee by comparable attorneys
in the community; (6) whether the fee is fixed or contingent; (7) the
time pressure involved; (8) the relief sought and results obtained;
(9) the experience, reputation, and ability of the attorney; (10)
the undesirability of the case; (11) the nature and length of the
attorney-client relationship; and (12) awards in similar cases. Cerny
v. Department of the Army, EEOC Request No. 05930899 (citing Johnson
v. Georgia Highway, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).
In this case, the AJ awarded complainant $86,440.00 in attorney fees
and costs. The agency does not challenge the attorney's hourly rate,
but requests that the award be reduced by 45% for other reasons
(which were generally the same reasons that it submitted to the AJ
in the June 30, 2006 document concerning its position on damages).
We apply an abuse of discretion standard concerning attorney fees.
See Blum v. Stenson, 465 U.S. 886 (March 21, 1984) (applying an abuse
of discretion standard to the district court's award of attorney fees).
After reviewing the specific charges which the agency considers to be
excessive or inappropriate, we decline to find that the AJ abused his
discretion. We note in particular, that the agency objects to paying
complainant's counsel's fees for work related to reviewing the EEO case
of E1. Since complainant's claim in this case is that he was subjected
to retaliation because of his testimony in E1's case, which was favorable
to E1, we find that such fees are reasonable.
Additionally, we note that the fact that the complainant did not prevail
on (or ultimately pursue at the hearing) every aspect of his original
complaint does not, in itself, justify a reduction in the hours expended
where the claims are intertwined, and it would be impossible to segregate
the hours involved in each claim. It is true that attorney's fees may not
be recovered for work on unsuccessful claims. Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). Courts have held that fee applicants should exclude
time expended on "truly fractionable" claims or issues on which they
did not prevail. See National Association of Concerned Veterans (NACV)
v. Secretary of Defense, 675 F.2d 1319, 1337 n. 13 (D.C. Cir. 1982).
Claims are fractionable or unrelated when they involve "distinctly
different claims for relief that are based on different facts and legal
theories." Hensley, 461 U.S. at 434-35.
At the hearing, complainant withdrew the claim that management routinely
reduced and/or amended his workload to give the impression that he was
a sub-performer, to keep his performance and grade below the revised
journeyman grade. An alleged basis of discrimination for this issue
was retaliation. We find that such claim, which complainant did not
ultimately pursue, is intertwined with the claim upon which complainant
prevailed, and therefore, a reduction of fees on this basis is not
warranted.
Additionally, complainant originally raised a claim that he was subjected
to discrimination on a regular basis because of a voice impairment caused
by cancer of the larynx and subsequent surgery and radiation treatment
(the effects of Agent Orange in Vietnam). He alleged that this prejudice
had been used to give the impression that he is a loud and boisterous
person who offends others through rude expressions. Although this claim
is apparently based on disability, it does appear to be related to the
agency's argument that complainant was not selected for reasons relating
to his interpersonal attitude. Moreover, a review of the fee petition
indicates that complainant's counsel spent a relatively small amount
of time working on the non-reprisal claim(s). In sum, we find that the
AJ acted within his discretion in awarding $86,440.00 in attorney fees
and costs.
Accordingly, we find that complainant was discriminated against on
the basis of reprisal for prior EEO activity when he was not selected
for the position of Supervisory Realty Specialist, GS-1170-13, Vacancy
Announcement No. HRMC Merit-2004-0012, and we find that the AJ's award
of remedies was appropriate. We therefore, REVERSE the final order and
direct the agency to comply with the Order below.
ORDER
Within sixty (60) days of the date this decision becomes final and to
the extent it has not already done so, the agency do the following:
(1) The agency shall immediately cease and desist from retaliating
against any individual who engaged in protected EEO activity.
(2) The agency will provide comprehensive training to all managers as
to their responsibilities with respect to EEO law.
(3) The agency shall not retaliate against any individuals who
participated or assisted in this EEO complaint. Further, the agency shall
assure that neither complainant nor any other employee be subjected to
restraint, coercion, and/or interference related to his or her right to
participate in the EEO process.
(4) The agency shall restore and credit to complainant all sick and annual
leave complainant used as a result of the retaliation. Complainant
must provide documentation verifying that he was absent because of the
retaliation. This is for the period September 3, 2004, to the present.
(5) Pay complainant attorney's fees and costs in the amount of
$86,440.00.
(6) The Agency will immediately promote complainant to a GS-13 position
for which he is qualified and substantially equivalent to the position of
Supervisory Realty Specialist. If no position is immediately available,
it must pay complainant front pay, including all other benefits of
employment including the value of earnings to his Thrift Savings Plan
account until such time a position becomes available and at that time
promote complainant to that position.
(7) Pay complainant back pay, with interest, and all other benefits
of employment pursuant to 29 C.F.R. � 1614.501, including the lost
earnings to complainant's TSP account, calculated from the date of
his non-selection, which occurred on September 3, 2004 until the date
he accepts or declines to accept the promotion.8 Complainant shall
cooperate with the agency's attempts by providing any information and
documents needed to calculate back pay and benefits.
(8) Pay complainant non-pecuniary compensatory damages in the amount
of $10,000.00; and pecuniary damages in an amount that complainant can
document.
(9) Consider taking appropriate disciplinary action against the
responsible management officials. The Commission does not consider
training to be disciplinary action. The agency shall report its decision
to the compliance officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Bureau of Land Management facility in
Denver, Colorado, 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate decision will have a substantial impact
on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 10, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 On September 14, 2006, complainant filed a Motion to Dismiss the
agency's appeal on the basis that the appeal was not timely filed.
The record indicates that the AJ issued his decision on July 27, 2006,
and mailed the decision and hearing transcript to the agency the same day.
We presume that the agency received the AJ's decision and hearing file
within 5 calendar days. Thus, the 40-day time-period which the agency
is allotted for issuing a final order and appealing to the Commission,
began on August 2, 2006. See 29 C.F.R. � 1614.110(a). The agency was
required to issue its final order and file its appeal with the Commission
on or before September 11, 2006 (since September 10, 2006 was a Sunday).
As the agency filed its appeal on September 11, 2006, the Motion to
Dismiss the Appeal is denied.
3 It appears that complainant amended his complaint during the hearing
process to add this issue. The record indicates that complainant raised
other issues, which he chose not to pursue at the hearing. Other issues
which complainant raised in his formal complaint were dismissed for
untimely EEO counselor contact.
4 This was complainant's second-level supervisor.
5 In his decision, the AJ stated that complainant did not establish
a prima facie case of retaliation, but it is evident that this was a
typographical error since the AJ stated the opposite elsewhere in the
decision, and ultimately made a finding of retaliation. See AJ Decision,
at 5.
6 The AJ noted that M1 explained that this "was a throw away statement.
I considered it a negotiation. And I really didn't expect [complainant]
to agree to that." The AJ describes this statement as "direct evidence"
of discrimination. We note that we do not find that this was "direct
evidence" of discrimination given the context in which the statement
was made, namely, in the midst of negotiating a possible settlement
in this case. Nevertheless, we find this to be harmless error, as
complainant has still proven through circumstantial evidence that the
agency's explanations were a pretext for retaliation. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
7 The AJ ordered the following remedies: (A) The agency shall immediately
cease and desist from retaliating against any individual who engaged
in protected EEO activity; (B) The agency shall provide comprehensive
training to all managers as to their responsibilities with respect
to EEO law; (C) The agency shall not retaliate against individuals
who participated or assisted with this complaint; (D) The agency
shall restore and credit to complainant all sick and annual leave
complainant used as a result of the retaliation. Complainant must
provide documentation verifying that he was absent because of the
retaliation. This is for the period September 3, 2004, to the present;
(E) The agency shall pay $86,440.00 in attorney's fees and costs; (F)
The agency will immediately promote complainant to a GS-13 position for
which he is qualified and substantially equivalent to the position of
Supervisory Realty Specialist. If no position is available, it must
pay complainant front pay, including all other benefits of employment
including the value of earnings to his Thrift Savings Plan account
until such time as a position becomes available and at that time
promote complainant to that position; (G) Pay complainant back pay,
with interest, and all other benefits of employment, calculated from
the date of his non-selection, which occurred on September 3, 2004
(H) Pay complainant $10,000.00 in non-pecuniary compensatory damages;
(I) Pay complainant pecuniary compensatory damages in an amount that
he can document; and (J) Post a Notice at the agency's Bureau of Land
Management facility in Denver, Colorado, indicating that the agency was
found to have retaliated against complainant.
8 Complainant shall be given a minimum of fifteen days from receipt
of the offer of promotion within which to accept or decline the offer.
Failure to accept the offer within the time period set by the agency will
be considered a rejection of the offer, unless complainant can show that
circumstances beyond his control prevented a response within the time
limit.
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0720060093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036