Darrell K.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

Mar 25, 2016

0120142217 (E.E.O.C. Mar. 25, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Darrell K.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120142217

Hearing No. 443-2014-00014X

Agency No. ARS-2013-00611

DECISION

Complainant filed an appeal from the Agency’s April 29, 2014, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s
final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a
Microbiologist/Category 3 Support Scientist, GS-11, with the Agency’s Agricultural Research
Service in the National Animal Disease Center (Center) located in Ames, Iowa. During the
relevant time, Complainant was assigned to the Center’s Tuberculosis Project. Complainant’s
second line supervisor was the Research Leader, Infectious and Bacterial Diseases of Live
Stock (Doctor A).

On March 1, 2013, President Obama signed a Sequestration Order, which reduced the budgets
of all federal agencies. In March 2013, the Agency informed the Center that it had to absorb a
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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7.38% budget cut, retroactive to October 1, 2012 (the beginning of the fiscal year) in order to
comply with the Sequestration Order. The Agency determined that overhead, which accounted
for approximately 70% of the budget, could not be reduced. As a result, the Agency decided
budget cuts had to be made in each of the Center’s projects. The budget of each of the
Center’s projects was cut in proportion with the project’s overall budget.

As a result of the Sequestration Order, three research projects, including the Tuberculosis
Project, had budget shortfalls, or a negative balance. The Tuberculosis Project had to absorb a
$170,000 cut in its budget, which it left it with a negative balance of funds. The Agency
absorbed the budget cut to the Tuberculosis Project and achieved viability by eliminating
Complainant’s Category 3 Support Scientist position and eliminating 50% of a Category 1
Independent Research Scientist’s position held by Doctor B. Doctor B was reassigned 50%
into the Johne’s Disease Project Unit and 50% to the Tuberculosis Project. Doctor A was able
to meet the rest of the fiscal obligations by abolishing vacant positions.

In May 2013, Complainant was reassigned to a vacant Category 3 Support Scientist position in
the Genomics Unit. As a Shared Research Cost (SRC), the Genomics Unit was not subject to
the same budget cuts as the research projects. The budget of the Genomics Unit is a SRC,
meaning that funding consists of contributions from the various research projects based on the
project’s use of the Genomics Unit’s Services. The research projects rely on the Genomics
Unit in conducting their research and did not reduce their contributions to the Genomics Unit
when the Sequestration Order cut the project’s budget. There was no other vacant Category 3
Support Scientist position at the Center in 2013, other than the position to which Complainant
was reassigned. Complainant’s title, job series, and pay grade remained the same after his
May 2013 reassignment.

On May 24, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (58) when:

On May 7, 2013, Complainant’s position as a Category 3 Microbiologist was abolished
in the Tuberculosis Unit and he was reassigned to the Genomics Unit.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on April 2, 2014.

In his decision, the AJ found Complainant failed to identify a similarly situated younger
employee who was treated more favorably or establish an inference of age discrimination. The
AJ noted that Complainant identified Doctor B as a similarly situated younger employee. The
AJ noted that Doctor B was 50% reassigned from the Tuberculosis Project to the Johne’s
Disease Project Unit. The AJ noted Complainant argued that although Doctor B was 50%

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reassigned to the Johne’s Disease Project Unit, he performed essentially the same duties in
both assignments.

The AJ found Complainant’s statement that Doctor B performed the same duties in the
Tuberculosis Project as he did in the Johne’s Disease Project was unsubstantiated. Also, the
AJ found Doctor B, a Category 1 Independent Research Scientist, Grade 12, was not similarly
situated to Complainant, a Category 3 Support Scientist, Grade 11. The AJ noted that Doctor
B and Complainant occupied different positions and performed different duties at different
grade levels. Finally, the AJ noted Complainant’s argument that Doctor B was not reassigned
from the Tuberculosis Project until two months into fiscal year 2014, was without merit. The
AJ noted the evidence shows that Doctor B began to work in his reassigned position in the
Johne’s Disease Project Unit as early as April 2013.

However, the AJ found that assuming arguendo that Doctor B was similarly situated to
Complainant, Complainant failed to show that the Agency’s explanation for reassigning him,
and not Doctor B, was pretextual. The AJ also found Complainant failed to create an
inference of age discrimination. Complainant argued that management assigned employees to
the position of Category 3 Support Scientist in the Genomics Unit to force them to retire.
Complainant stated that the last two employees assigned to the position retired.

The AJ found that merely because the last two employees who held the Category 3 Support
Scientist position retired, does not establish an inference of age discrimination. Both
employees held the position for years before their retirement. One employee held the position
from 2001 to 2008, and the other from 2009 to 2012. Complainant’s predecessor retired to
take a position in the private sector while simultaneously collecting federal retirement benefits.

The AJ stated assuming arguendo Complainant established a prima facie case, he failed to
show that the Agency’s explanation for reassigning him was not believable. To comply with
the Sequestration Order, the Center had to absorb a 7.38% budget cut retroactive to October 1,
2012. The Agency determined budget cuts had to be made in each of the Center’s project. To
reduce a shortfall in the Tuberculosis Project, Complainant was reassigned to a vacant funded
position with the same title and grade in the Genomics Unit. The AJ noted Complainant
attempted to show pretext by arguing that there were no across the board budget cuts for the
Genomics Unit.

The AJ found the Agency provided an explanation for the fully funded Category 3 Scientist
position in the Genomics Unit. As a Shared Research Cost, the Genomics Unit was not subject
to the same budget cuts as the research projects. Funding for the Genomics Unit consisted of
contributions from the various research projects based on the projects’ use of the Genomics
Unit’s Services. The research projects rely on the Genomics Unit in conducting their research.
The research projects did not reduce their contributions to the Genomics Unit when the
Sequestration Order cut the project’s budget. Thus, the vacant Category 3 Scientist position in
the Genomics Unit remained fully funded after the Sequestration Order.

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The AJ noted Complainant argued that the Tuberculosis Project only absorbed 50% of his
salary because the other 50% of his salary previously came from the Brucellosis Project. In
June 2012, the Center recognized the fact that the Tuberculosis Project had inadequate funds to
keep the Project viable. The Center decided not to abolish any positions in the Tuberculosis
Project and instead, as temporary solution for FY 2013, it would use funds from the
Brucellosis Project to pay for 50% of Complainant’s salary in the Tuberculosis Project. The
AJ found that after the Sequestration Order went into effect, it was not feasible for the
Brucellosis Project to pay half of Complainant’s salary because all research projects absorbed
budget cuts.

The AJ found Complainant failed to show that the reason for abolishing his position was not
believable. The AJ noted only the Tuberculosis Project and two other projects in the Virus and
Prion Research Unit had budget shortfalls. The Supervisor in the Virus and Prior Research
Unit was able to abolish four vacant temporary positions, one vacant Technician,GS-9
position, and one Category 1 Scientist position, GS-12, to remedy the budget shortfall.

The AJ noted that Complainant argued that a position for a Research Scientist in Doctor A’s
unit was posted on September 16, 2013. A Category 1 Independent Scientist position, GS-
12/13, in the Spirochetes Project, was posted in September 2013. The scientist retired in
2012, and the position was included in the pre-sequestration FY 2013 budget and fully funded.
Doctor A considered abolishing the position due to sequestration, but determined the Center
would not be able to meet its objectives for Spirochetes research without the position. Because
the position was fully funded and vacant, the Center posted the vacancy in September 2013.
The AJ determined Complainant failed to establish that he was subjected to discrimination.

The Agency subsequently issued a final order on April 29, 2014. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 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”).

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed, that the AJ
acted properly in handling discovery motions, and there are no disputes of material fact. We

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note that Complainant does not challenge the definition of the issues in his complaint on
appeal.

In the present case, we note the Agency articulated legitimate, nondiscriminatory reasons for
reassigning Complainant. The Agency stated the Tuberculosis Project, where Complainant
was previously assigned, did not have the budget to pay the salaries of all its personnel after
absorbing a 7.38% budget cut due to sequestration. To comply with the Sequestration Order,
the Agency cut 50% of one of the Tuberculosis Project’s Category 1 Independent Research
Scientist positions in addition to eliminating Complainant’s Category 3 Support Scientist
position. The only vacant Category 3 Scientist position that was vacant and fully funded after
sequestration was the position in the Genomics Unit, to which Complainant was assigned.
Complainant failed to show that the Agency’s actions were a pretext for age discrimination.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). 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

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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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 25, 2016
Date