Gregg B.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Jun 30, 2016

0120142779 (E.E.O.C. Jun. 30, 2016)

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

Gregg B.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120142779

Hearing No. 570-2011-00032X

Agency No. HS-10-CIS-005608

DECISION

Complainant filed an appeal from the Agency’s June 27, 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 Human Resources
Specialist, GS-13, at the Agency’s facility in Dallas, Texas. On June 22, 2010, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the basis of his
age (64) and in reprisal for prior protected EEO activity when management terminated him
from his position effective April 10, 2010.

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

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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and the AJ held a hearing on January 30, 2014. The AJ issued a decision on May 23, 2014,
finding no discrimination. Specifically, the AJ found that Complainant failed to show that the
Agency’s articulated reasons for terminating his employment were a pretext for unlawful age
or reprisal discrimination. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected him to discrimination as
alleged. On appeal, Complainant contends that the hearing testimony does not support the AJ’s
decision and that the AJ erred in finding no discrimination.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

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, non-discriminatory reason for its actions. Texas Department of Community 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 (2000).

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 record shows that following his retirement,
Complainant was rehired into a Human Resources Specialist (HRS) position in 2001. In 2009,
Complainant was assigned a new supervisor (S1), who implemented a number of new policies
including the requirement to submit weekly reports and to draft actual work product as
opposed to providing guidance to clients and allowing them to create the product. The record
shows that despite numerous reminders, Complainant failed to provide the required weekly
reports or consistently draft actual work product. S1 also testified that even after Complainant
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began to comply with his directive to send documents to him for review, Complainant was
resistant to drafting documents according to S1’s instructions. S1 states that in addition to these
issues, Complainant had difficulty with the timeliness of his work product. Further, S1 testified
that Complainant had extremely poor file management practices. Specifically, when S1 had
another employee audit Complainant’s files, they discovered that most of the files were
incomplete and that documents were misfiled, and that despite discussing this problem with
Complainant, he failed to properly address the deficiencies. S1 testified that as a result of these
performance issues, he issued Complainant a notice of termination. We concur with the AJ’s
finding that Complainant failed to show that the Agency’s articulated reasons for terminating
his employment were a pretext for unlawful age or reprisal discrimination.

CONCLUSION

We discern no basis to disturb the AJ’s decision and the Agency’s final order finding no
discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 request or opposition must also include proof of service on the other
party.

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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.

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

June 30, 2016
Date