Erwin V.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120171180 (E.E.O.C. Nov. 7, 2018)

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

Erwin V.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.

Appeal No. 0120171180

Agency No. USMS201501698

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 January 18, 2017, 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

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Deputy
United States Marshal, GS-13, at the Agency’s Tucson, Arizona District Office in Tucson,
Arizona. Complainant has 17 years of experience with the Agency. On March 2, 2015, the Agency
circulated a memorandum to all U.S. Marshals Service Employees notifying employees that the
Office of Preference (OPREF) process would open for 14 days to permit employees to apply for
transfers to other districts at the GS-12 level. The memorandum identified 16 different districts
that could receive transfers. Complainant applied to three of these districts: Eastern North Carolina
– Greenville; Western North Carolina – Asheville; and Southern Texas – Corpus Christi. The
Agency did not select Complainant for any of these positions. The Agency selected one employee
for each of these locations.

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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Regarding the Greenville selection, Complainant believes he was discriminated against based on
his age because he claims he has been told that management in the Western North Carolina district
prefer younger, newer deputies as opposed to “seasoned” deputies because “the younger less
experienced Deputies can be manipulated easier.” Complainant could not, however, provide any
evidence or witnesses to support his statement.

The Marshal responsible for the Greenville selection said that his district “selected the best person
to work in this district with good skills and could work with all of his or her coworkers and the
court family.” The Deputy Marshal in Greenville added that “[t]he district was looking for
someone with the appropriate skill level and demeanor to work in a district sub-office with strong
personalities” and that the selectee seemed to fit that criteria. The Greenville selectee was 29 years
old. Both the Marshal and Deputy Marshal for Greenville denied being aware of Complainant’s
age.

As to the Asheville selection, Complainant states that he spoke to an employee in Asheville, and
the employee “overheard that management prefers young, inexperienced Deputies because they
are easier to control and manage . . . .” However, Complainant did not identify the employee at
the time of his interview with the EEO investigator or thereafter, and he had no further evidence
to support his allegation with respect to Asheville.

The Marshal for Asheville explained that Complainant was strongly considered for the position,
but he believed that the Asheville selectee was a better fit for the office. The Marshal denied
knowing Complainant’s exact age, but admitted knowing Complainant. The Marshal denied that
Complainant’s age played a factor in his non-selection. The Deputy Marshall for Asheville further
explained that he recommended a candidate who had an information technology and sciences
degree, “which was a much needed skill in our office.” The Asheville selectee was 32 years old.

Turning to the Corpus Christi selection, Complainant states that he believes he was discriminated
against based on his age because he had received a phone call from the Marshal for the Southern
Texas district (MTX), who praised his resume and background and was generally positive.
However, after he was not selected, the Marshal told Complainant that the Chief in Corpus Christi
decided to go in a different direction and “wanted to pick somebody that had some collateral duties
under his belt that we were lacking in Corpus Christi.” Complainant believes there was no
explanation for the difference in MTX’s tone other than discrimination.

MTX explained that the selectee had extensive experience and collateral duties that would be
beneficial to the Corpus Christi office. MTX also said that he experienced vacancies in Corpus
Christi and lost deputies who possessed collateral duties that are not easy to replace. He also spoke
with a deputy in Corpus Christi who had worked with Complainant in Arizona. The deputy said
she had not heard anything negative about Complainant. MTX also said that the Corpus Christi
selectee was 43 years old.

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The Deputy Marshal for Corpus Christi explained that the selectee came with glowing
recommendations and it was clear to him that the selectee “was a great asset to that district who
they did not want to lose.” The Deputy Marshal also spoke to Arizona supervisors who gave
Complainant good recommendations.

Complainant further contends he was far more qualified than any of the selectees because he had
been employed with the Agency at the GS-13 level, and that a transfer to any of the three locations
would have constituted a reduction in grade and pay to him. Complainant also contends that his
rank made him observably superior to each of the selectees since they were all at the GS-12 level.

Complainant claims that he was present for a meeting between the Chief and Assistant Chief of
the Arizona district and a deputy to address a disciplinary matter involving the deputy. After that
meeting, the Chief asked him to remain behind and then, after the deputy left, the Chief asked
Complainant about the progress of his EEO complaint. Then after Complainant told the Chief and
Assistant Chief that he was no longer going to try to transfer out, the Chief told him that he needed
to transfer out and to not allow his career to stagnate. Complainant argues that “[i]t is one thing
to ask questions in a friendly, inquisitive way and it is another one to ask probing questions and
ask questions about the process of the EEO complaint where it stands and then to keep hammering
home that you need to transfer out of here; don’t stagnate your career. . . . It just felt different this
time and, as far as that meeting is concerned, I would say [the Chief] would be the one that was
pressuring and probing.” Complainant believed that the Chief and Assistant Chief were concerned
about having an open investigation on their hands and hoped that if he did transfer out, the problem
would go away.

On October 9, 2015, the Assistant Chief came into Complainant’s office and told Complainant that
he polled the office and “that there was a sense in the Deputies that the Operational Supervisors
were impersonal, inattentive, and uninvolved.” Complainant states that the only other supervisor
was nearing retirement, which meant that the statement was directed squarely at Complainant. The
Assistant Chief never documented the encounter or his concerns. Complainant contends that this
was very unusual conduct.

Additionally, Complainant describes a meeting that caused his supervisors to say that he was
disruptive and argumentative. Every year, the Arizona district assists with an operation on
Halloween night to ensure that registered sex offenders are not wearing costumes, have no
decorations, and are not handing out candy. On this year, Halloween fell on a Saturday night,
which raised concerns about whether deputies were entitled to overtime or to be compensated with
additional leave. Complainant disagreed with other managers during a meeting with the deputies
and contended that the deputies were entitled to overtime. Ultimately, the deputies swapped out a
day during the week with their Saturday so as to still get two days off during that week.
Complainant alleges that the Assistant Chief made the statement to him that he was disruptive and
argumentative.

The Chief disavowed any recollection of these events, but stated that it is his practice not to inquire
or discuss EEO complaints with the complainant.
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The Assistant Chief denied pressuring Complainant to transfer out of the Arizona district. He did
admit meeting with Complainant to discuss a performance issue and recalled the meeting in which
the Halloween operation was discussed. The Assistant Chief said that the meeting was lively and
professional. Afterwards, he spoke with Complainant to “reiterate the management team concept
– behind closed doors the Tucson management team can disagree and argue, but when that door
opens, we are united in the decision when it is present to staff.” He told Complainant several times
that he was appreciative of how Complainant speaks his mind in management meetings and how
Complainant advocates for his staff.

Regarding Complainant’s attempts to transfer, the Assistant Chief said he told Complainant that
Complainant was trying to move for the right reasons and shared his own experiences with not
being selected for jobs and continued to apply for promotions.

On May 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age (46) when:

1. in March 2015, the Agency did not select him for three Office of Preference
(OPREF) transfer opportunities; and

2. The Agency did not select him for nearly 50 other positions between May 6, 2011
and December 2014.

The Agency accepted claim (1) for investigation and dismissed claim (2) for failure to timely
contact an EEO counselor. With respect to claim (2), the Agency noted that Complainant first
contacted an EEO counselor on April 13, 2015. The Agency concluded that the most recent non-
selection in claim (2) occurred well outside of the 45-day initial contact period prescribed by 29
C.F.R. § 1614.105.

During the investigation, Complainant amended his claim to further allege that he was
discriminated against based on age and in reprisal for prior protected EEO activity when:

3. Between September 9 and October 9, 2015, Complainant’s supervisors attempted
to pressure him into transferring, accused him of being impersonal and uninvolved
with subordinates, and told him his conduct during a management meeting was
disruptive and argumentative.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

Specifically, the Agency found that the Marshals and Deputy Marshals for Greenville, Asheville,
and Corpus Christi articulated legitimate, nondiscriminatory reasons for choosing the selectees
instead of Complainant.
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The Agency then found that Complainant failed to demonstrate the Agency’s reasons were pretext
or that he was clearly better qualified for the positions. In doing so, the Agency stated that having
more years of experience did not necessarily make Complainant a better qualified candidate and
Complainant did not provide evidence to back up his contention that management in Asheville and
Greenville preferred younger and newer employees.

The Agency also found that the record contained insufficient evidence to show that management
in Arizona retaliated against Complainant. In particular, the Assistant Chief articulated legitimate
non-discriminatory reasons for his actions, and there was no evidence that he acted toward
Complainant with retaliatory animus. Accordingly, the Agency found that Complainant had not
been subjected to discrimination or reprisal as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant takes issue with the Agency’s investigation into his complaint.
Specifically, Complainant contends that a span of 172 days between the time he requested an
immediate agency decision and the date the decision was issued is not “immediate.” Complainant
also objects to the timeliness of the investigation. Complainant argues that, on November 18,
2016, he submitted documentation that showed additional instances of retaliation, particularly as
it pertains to annual awards. Complainant argues that he was never told that these additional
instances would not be considered as part of his complaint until he received the Agency’s report
of investigation.

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”).

As a preliminary matter, we conclude that the Agency properly dismissed claim (2) for failure to
timely contact an EEO counselor. Complainant contacted an EEO counselor on April 13, 2015.
Therefore, for any claim to be timely, it had to have occurred no more than 45 days prior to that
date. 29 C.F.R. § 1614.105(a)(1). The most recent claim of non-selection in claim (2) occurred
in December 2014. Thus, no part of claim (2) was timely.

Furthermore, after a thorough review of the record, we find that the investigatory record in this
case consists of appropriate evidence that allows a reasonable fact-finder to draw conclusions as
to whether discrimination occurred.
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While Complainant’s appellate argument assails the adequacy of the investigation into his
complaint, we note that Complainant admits that he asked the Agency to issue a final decision.
Complainant could have asked that his claims be assigned to an EEOC Administrative Judge, and
therein used the discovery mechanisms afforded by 29 C.F.R. 1614.109(d). Accordingly, the
Commission finds no merit in Complainant’s assertion that the processing and investigation of his
complaint was incomplete or otherwise deprived him of a fair opportunity to prove his case.2

Finally, to the extent that Complainant is requesting that the Commission sanction the Agency for
its untimely final decision, the Commission finds that Complainant has not made a showing that
he was prejudiced by the Agency's delay in issuing the final decision. Although the Agency failed
to issue a timely decision as required by regulation, the Commission finds that the Agency did not
act in a manner to warrant a sanction in the present case.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To establish a prima facie case of age discrimination, Complainant must show that he was over
forty years of age, that he was subjected to an adverse employment action, and that he was treated
less favorably than other similarly situated employees younger than himself, i.e. he was accorded
treatment different from that given to persons who are considerably younger than he. See Reeves
v. Sanderson Plumbing Products. Inc., 530 U.S. 133 (2000); O’Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308 (1996).

Here, we find that assuming, arguendo, Complainant established a prima facie case of age and
reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the Agency explained that its Greenville office contained multiple
strong personalities and that they sought an individual whose personality would fit in among these
personalities. Regarding the Asheville selection, the Agency explained that the selectee had an
information technology and sciences degree, which fit the needs of the position.

2 In addition, the record reflects that Complainant sought to amend his complaint after the
investigation had been completed to include an allegation regarding awards. Should he wish to
pursue such a claim, Complainant is advised to contact an EEO counselor.
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Regarding the Corpus Christi selection, MTX explained that the selectee had extensive experience
and collateral duties that would be beneficial to the Corpus Christi office. MTX also said that he
experienced vacancies in Corpus Christi and lost deputies who possessed collateral duties that are
not easy to replace. These are legitimate, nondiscriminatory reasons. See Higgins v. Dep’t of
Veterans Affairs, EEOC Appeal No. 0120110471 (June 20, 2013) (selection based on the selectee
having good rapport with volunteers and customers was a legitimate reason); Buckner v. Dep’t of
Justice, EEOC Appeal No. 0120090629 (Dec. 16, 2011) (approving of selection based in part on
the selectee’s personality).

At this stage, the burden shifts to Complainant to demonstrate that the Agency’s articulated reasons
are false or not worthy of belief. Complainant has not done this. Complainant only points to his
years of service as evidence of his superior qualifications. The Commission has long held that an
employer has the discretion to choose among equally qualified candidates. See Canham v. Oberlin
College, 666 F.2d 1057, 1061 (6th Cir. 1981). Absent proof of a demonstrably discriminatory
motive, the EEOC will not second-guess an Agency’s personnel decision. See Burdine, 450 U.S.
at 259. EEOC simply has neither the authority nor the capacity to stand as the super-personnel
department for the Agency. Only personnel decisions that are idiosyncratic or suspect are subject
to heightened scrutiny because deviations from standard procedures without explanation or
justification are sufficient to support an inference of pretext. See Andre v. Dep;t of Defense, EEOC
Appeal No. 01994562 (Feb. 22, 2002); Hovey v. Dep’t of Housing & Urban Dev., EEOC Appeal
No. 01973965 (Aug. 31, 2000). We see no suspect action here. Accordingly, we find that
Complainant has not demonstrated he was discriminated against as alleged in Claim 1.

As to claim (3), assuming arguendo, that Complainant established a prima facie case of reprisal,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Assistant
Chief said that he was trying to encourage Complainant to keep trying to succeed in his attempts
to transfer, citing his own difficult experiences in transferring. The Assistant Chief said he had
concerns about Complainant’s performance and discussed these concerns with Complainant, as he
would with any other employee. With regards to the Halloween operation, the Assistant Chief
explained that he sought to remind Complainant that disagreements should be hashed out among
the management team, and then they should present a united front to Agency employees.

Complainant has presented no argument tending to establish, by a preponderance of the evidence,
that any of these explanations are false or unworthy of belief. Accordingly, we find that
Complainant has failed to demonstrate he was subjected to discrimination or reprisal as alleged.
Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that a finding of a hostile
work environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory or
retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Therefore, the Commission finds that Complainant has not established that he was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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.
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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

November 7, 2018
Date