Erik S.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120171453 (E.E.O.C. Nov. 2, 2018)

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

Erik S.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.

Appeal No. 0120171453

Hearing No. 410-2015-00290X

Agency No. ATF-2014-00527

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 7, 2017
final order concerning an equal employment opportunity (EEO) complaint claiming employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Firearms Training Manager/Special Agent
(SA) at the Agency’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Training
Academy in Glynco, Georgia.

On June 2, 2014, Complainant filed a formal EEO complaint alleging the Agency discriminated
against him based on race (Caucasian), sex (male), age (over 40), and in reprisal for prior EEO

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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activity when, on April 23, 2014, his request to remain at his current post of duty at the ATF
Training Academy, Glynco, Georgia, was denied.2

After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
a Decision Without a Hearing. On December 29, 2016, the AJ issued a decision by summary
judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

In 2007, Complainant advised the Chief of the Academy (“the Chief”) (white male, 54 years old)
that a named Special Agent Trainee (“Trainee 1”) should not be permitted to graduate from the
Academy due to his inability to pass mandatory firearms training. Complainant further asserted
that he told the Chief that permitting Trainee 1 to graduate would set a dangerous precedent and
potentially expose the Agency to civil liability because several minority trainees had not been
accorded the same flexibility with respect to mandatory firearms training. Despite Complainant’s
efforts, Trainee 1 was permitted to graduate from the Academy.

Several days before Trainee 1’s graduation, Complainant advised the Agency’s Detroit Field
Office Firearms Instructor Coordinator that Trainee 1 would require additional firearms training,
given his inability to pass his mandatory firearms training at the Academy. Complainant also
warned that Trainee 1 could pose a safety risk to his fellow agents in Detroit based on his poor
firearms abilities. Several months after Trainee 1’s graduation, the Chief spoke at a “going
away” party at the Academy. The Chief made a remark that he was aware that a staff member
contacted the Detroit Field Office about Trainee 1’s firearm qualification failure which made
him upset and that “he would not forget it.”

In March 2013 or April 2013, after the Chief had assumed the position of Deputy Director of the
Academy, and became part of Complainant’s chain of command, the Academy’s Deputy Chief
told Complainant that the Deputy Director was asking about him, that he was on his “radar
screen,” and that he should start looking for a “home.” Complainant asked the Deputy Chief if
he thought that Trainee 1 incident was the reason for the Deputy Director’s inquiries, and the
Deputy Chief responded “probably, but it would be hard to prove.”

2 The record reflects that Complainant’s original complaint also included a claim that his request
to transfer to the Savannah Field Office was denied. However, in his interrogatory during the
investigation, Complainant deleted the portion of the accepted claim referring to denial of
transfer to the Savannah Field Office. The record further reflects that Complainant did in fact
transfer to the Savannah Field Office on July 27, 2014. This portion of the claim is considered to
be withdrawn.
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In September 2013, Complainant met with the Assistant Director and the Deputy Assistant
Director regarding his tenure at the Academy and the Assistant Director’s desire that
Complainant take on a supervisory position in the field. The Assistant Director told
Complainant that she did not want agents “homesteading” at the Academy and asked
Complainant where he would like to be transferred. Complainant responded that he was not
interested in transferring, either to another position or another location. In November 2013,
Complainant met privately with Deputy Assistant Director who asked him which city he wished
to transfer. Complainant reiterated his desire to remain in his current position at the Academy.
The Deputy Assistant Director was directed by the Assistant Director to determine to which city
Complainant wished to transfer, because a transfer was imminent.

Complainant was permanently and involuntarily transferred to the Atlanta Field Division,
Savannah Field Office, with an initial effective date of July 27, 2014. According to
Complainant, the effective date of his transfer was later extended until September 2, 2014.

The Chief, who Complainant believed may have retaliated against him for the Trainee 1
situation, stated that he was not involved in the decision to deny Complainant’s request to remain
at the Academy or transfer him to another location. He stated that the then-Assistant Director
handled the matter.

The Assistant Director (white female, 55 years old, prior protected activity) stated that during the
relevant period, she advised Complainant that he lacked credibility in the field due to his
prolonged absence from a field office. Specifically, the Assistant Director stated “I advised
[Complainant] that although he is technically adept at firearms instruction, he lacks credibility in
the field as he has not been off the street for so many years. I knew this because he came to
training when I was the Deputy Assistant Director in 2006 and he arrived shortly thereafter. The
skills and talents at the ATF National Academy need to be the very best we can provide as we
are developing the foundation a new agent takes with himself/herself for a career…I personally
believe that keeping the waters fresh with new talent, our best and brightest, bring symbiotic
benefit to the instructor, student and therefore ATF is the ultimate benefactor.”

The Assistant Director stated that she discussed the matter with Complainant shortly after she
was promoted to Assistant Director. She reported that Complainant acknowledged her rationale
and agreed to return to the field. The Assistant Director asserted that in addition to Complainant,
she discussed the need to rotate with two other employees. The Assistant Director stated that she
talked about various locations with Complainant and Savannah Field Office was determined to
be the best location.

The Assistant Director noted that Complainant wanted to stay in Brunswick because he did not
want to move his family and he ran a side business in firearms training. However, she stated,
“there was no office in Brunswick and although they wanted to open one, it did not pan out. The
next best arrangement in [Complainant’s] interest and in the interest of the ATF was to assign
[Complainant] to Savannah. They could use the agent and [Complainant] didn’t have to move. I
absolutely do not understand this complaint.”
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Furthermore, the Assistant Director stated that Complainant signed a mobility statement and
“we have an agency to run. An agency that is small in numbers and cannot be as
accommodating to specialties.” Furthermore, the Assistant Director acknowledged she
transferred other employees “who wanted to transfer to various locations and some that did not
want to be transferred. My decisions have always been made in support of ATF’s mission first
and the development of ATF employees, which I consider to be one in the same.”

The then-Deputy Assistant Director (African-American male, 51 years old, no prior protected
activity) confirmed that the decision to deny Complainant’s request to remain at the Academy
and transfer him was made by the then-Assistant Director. The Deputy Assistant Director stated
that there was a five-year policy in effect at the Academy “for Special Agents and Industry
Operations Investigators that once an employee is assigned to the Academy for five or more
years, they are required to initiate looking for another assignment to rotate into.” He indicated
that the policy had been in effect for a long time.

Based on these facts, that AJ determined no discrimination was established. In her decision, the
AJ noted that Agency management claimed that its decision to transfer Complainant to the
Savannah Field Office was made in accordance with Agency policy. Specifically, Special Agents
assigned to the Academy “for five or more years were expected to look for new assignments in
order to ensure that Academy employees have relatively recent field experience.” The AJ further
found that other employees similarly situated to Complainant were treated the same. The AJ also
noted that Complainant signed a mobility agreement upon his arrival at the Agency in which he
accepted as a condition of his employment that he might be moved involuntarily at any time.
Finally, the AJ determined that the former Assistant Director, along with the Assistant Director,
Human Resources and Professional Development, were responsible for Complainant’s
involuntary transfer out of the Academy and “there is no evidence, apart from Complainant’s
self-serving assumption that [Chief] played any role in effectuating his involuntary transfer.”

The Agency issued its final order, adopting the AJ’s determination that no discrimination or
retaliation was established.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo.

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See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action
shall be based on a de novo review…”); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5,
2015) (providing that an administrative judge’s determination to issue a decision without a
hearing, and the decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the decision to transfer
Complainant. Complainant did not prove, by a preponderance of the evidence, that these
proffered reasons were a pretext designed to mask discrimination or unlawful retaliation.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.

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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
November 2, 2018
Date