Discrimination in Non-Selection

The EEOC Office of Federal Operations (OFO), recently upheld an administrative judge’s (AJ’s) finding that the Department of Agriculture Farm Services Agency (FSA) discriminated against complainant Deborah Lombardino when it did not select her for the position of civil rights director, small business utilization staff, a temporary, one-year position. Lombardino v. USDA, Appeal No. 07200070007, (November 27, 2009). The OFO also affirmed the AJ’s compensatory damage award of $12,000 and the AJ’s attorney’s fee award of $133,247.95.

The OFO also affirmed the AJ’s equitable remedies, including priority placement for the period of one year in the next vacant director of civil rights position at the GS-15 level within USDA as a whole that would be substantially equivalent to the position for which Lombardino had been turned down; a recommendation that the agency considers discipline for the selecting official; an order that the selecting official be required to undergo four hours of EEO training; and a requirement that the USDA/FSA post a notice of the finding of discrimination at Lombardino’s work location.

The AJ had also found discrimination in a second non-selection challenged by Lombardino, but under a “mixed motive” analysis, held that despite strong evidence of retaliatory animus against her, the agency would have made the same selection decision even absent the animus and therefore limited the agency’s liability. The OFO did not disturb the AJ’s findings that Lombardino had not proven allegations of discrimination with respect to three additional discrimination complaints that the AJ consolidated for hearing.

This case has been pending for nearly a decade and resulted in the overall successful outcome for the complainant. Lombardino first learned of the non-selection for the position in August 2001. She filed her complaint of discrimination in January of 2002, and the case was finally set for hearing before the AJ in August and September of 2005. The AJ reconvened a hearing on damages in June of 2006, and then issued a 137-page decision on September 11, 2006, in which he found that the agency discriminated against her based on reprisal when it did not select her for the position. The agency issued its final order on October 26, 2006, and concurrently its appeal, and Lombardino filed her cross-appeal on November 22, 2006. The briefing continued into early 2007. The final EEOC decision was issued on November 27, 2009, almost three years after Lombardino filed her cross-appeal.