Erik S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Dec 20, 2017

0120160194 (E.E.O.C. Dec. 20, 2017)

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

Erik S.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120160194

Hearing No. 570-2015-00558X

Agency No. HS-FEMA-02122-2013

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 31, 2015, final
decision 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 decision.

BACKGROUND

Complainant worked as a Program Specialist, GS-0301-13, within the Agency’s Operations
Division, which is headquartered in Herndon, Virginia. On September 25, 2013, Complainant
filed an EEO complaint in which he alleged that the Assistant Administrator for Response, his
third-line supervisor (S3), discriminated against him on the basis of age (56) by reassigning him
from his then-current position, which had a full-performance level (FPL) of GS-14 to the
position of Program Planner, GS-043-13, which was already at its FPL, GS-13, thereby causing
him to lose a career-ladder promotion to GS-14.

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.
0120160194

2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

Complainant was hired into his Program Analyst position on July 1, 2012 and assigned to the
Incident Management Assistance Team (IMAT). He was hired as a GS-13, with FPL at GS-14.
He would have been eligible for a career-ladder promotion to GS-14 on July 1, 2013. However,
toward the end of FY 2013, the Agency’s senior leadership decided to disband the IMAT and
reconstitute it with full-time temporary employees. According to S3, efforts would be made to
find incumbent IMAT members positions in other areas of the Agency that were commensurate
with their skills and experience so that the Agency would not have to resort to a reduction-in-
force. IR 144-45. Complainant received a notice signed by S3 and dated May 31, 2013 that he
would be given a directed reassignment to a Program Planner position in the 043 job series. The
notice stated that the action was being taken based upon the decision that his experience and
background could best be utilized in that position. S3 and a Liaison from the Human Resources
Office averred that because the FPL of the position to which Complainant was reassigned was
GS-13, he had lost his eligibility for a career-ladder promotion to GS-14. IR 90, 98, 108, 113-
14, 147, 157, 159-61, 167, 225.

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). As a first step, he must normally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since S3 articulated
legitimate, nondiscriminatory reasons for reassigning Complainant from the 301 job series to the
043 series and not promoting him to GS-14. See U.S. Postal Service Board of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). According to S3, Complainant was reassigned so that he would not
0120160194

3
have to lose his job in a reduction-in-force, and the position into which he was reassigned did not
have a FPL beyond GS-13.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be
demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact
finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC
Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008). When asked why he believed that the reassignment and its
resulting loss of eligibility for career-ladder promotion to GS-14 were due to his age,
Complainant replied that he was much older than his IMAT contemporaries, and that two other
IMAT members were promoted to their FPL within the same time frame that he was denied his
FPL promotion. IR 91-94. However, the two individuals to whom Complainant was referring
had both received their career-ladder promotions to their FPL on May 19, 2013, before the
IMAT action was undertaken. IR 179, 204-05.

As Complainant chose to withdraw his request for a hearing, the Commission does not have the
benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Beyond
his own assertions, Complainant has not presented affidavits, declarations, or unsworn
statements from witnesses other than himself or documents which contradict the explanation
provided by S3 or which call his veracity into question. Consequently, based on the evidentiary
record before us, we agree with the Agency that Complainant has not presented evidence
sufficient to establish the existence of an age-related motive on the part of S3 or of any other
Agency official involved in the decision to disband the IMAT and reassign him.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order finding that Complainant did not establish that he was discriminated against
as alleged.

0120160194

4
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.
0120160194

5
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

December 20, 2017
Date