0120123023
12-18-2012
Homi Amirmokri, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Homi Amirmokri,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120123023
Hearing No. 531-2011-00077X
Agency No. 09-0063-HQ-NE
DECISION
On July 25, 2012, Complainant filed an appeal from the decision of an EEOC Administrative Judge (AJ), dated May 2, 2012 concerning an equal employment opportunity (EEO) complaint alleging 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. The Agency did not issue a final action following the AJ's decision. Therefore, the AJ's decision became the Agency's final order pursuant to 29 C.F.R. � 1614.109(e). The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Senior Technical Advisor to the Office Director at the Agency's Headquarters office in Washington D.C.1
On July 10, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of national origin (Iranian), religion (Islam), age (over 40), and in reprisal for prior EEO activity when:
1. in February 2009, he was reassigned;
2. in February 2009, he was not assigned to the position of Acting Director, Office of Laboratory Facilities Management;
3. he was not placed in an Senior Executive Service (SES) level position, as part of an Agency November 2009 reorganization; and
4. in August 2010, he was not selected for the position of Director, Office of Laboratory Facilities Management or allowed to compete for the position.
A hearing was held on March 1, 2012. On May 2, 2012, the AJ issued a decision finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of national origin, age and retaliation.2 The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. Specifically, the AJ determined that the employees who were assigned to the subject positions were considered qualified, while Complainant was not qualified.
When the Agency did not issue a final order within forty days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
The record reflects that although Complainant took SES-related courses at the USDA Graduate School, he did not show that such courses would qualify him or any employee to become an SES level employee. The record reflects that the only way an employee could become an SES was (a) by either successfully completing and SES Candidate Development Program (SESCDP) and being certified by the Office of Personnel Management or (b) by applying for and being selected for an SES position.
The AJ noted that in February 2009, the Acting Assistant Secretary (Secretary) carried out management reassignments in the Office of Nuclear Energy. The AJ further noted that before and after the management reassignments, Complainant held a position classification of a Nuclear Engineer. The management reassignment resulted in an adjustment of Complainant's functional areas of assigned duties. The record reflects that before the reassignments, Complainant served as an expert on Nuclear Safety, and related subject matters. After the reassignments, Complainant was assigned a subject area of Legacy Environmental Liabilities. In his reassigned position, Complainant conducted oversight and management of the construction of nuclear facilities. The record reflects that before and after the reassignments, Complainant's functions were within his Nuclear Engineer position description.
The AJ further noted that the Secretary carried out the management reassignments as a means to promote efficiency of the Agency and for the purposes of better aligning the Nuclear Engineer organization within the Nuclear Engineer's goals. The AJ noted that the management reassignments in February 2009 consisted of lateral management transfers.
The AJ noted that the Agency has broad discretion to make decisions concerning reassignments of SES level personnel. The SES was to administer assigning Agency officials where they would be most effective in accomplishing the Agency's mission and where best use would be made of their experience. The record reflects that once candidates are in the SES or have completed an SESCDP, they are eligible for non-competitive placement in any SES-level position. The record reflects that during the relevant time Complainant did not attend or complete an SESCDP.
The AJ noted that the Secretary testified that in February 2009, he made several reassignments. The Secretary stated that in January 2009, he was informed that a female Manager of the Idaho Operations Office in Idaho Falls, Idaho was planning to retire within one month. The Secretary stated that the Idaho Operations Office had approximately 250 employees and it was necessary to have an experienced SES level manager in place. Specifically, the Secretary stated "given the short period of time between when [female manager] notified us that she was retiring, . . . I felt necessary to put, to move someone out there, a Senior Executive from Headquarters to manage the office until such time we could go through recruitment process to find a permanent replacement for [the named female manager]."
The Secretary stated that he reassigned a named male SES employee from the Deputy Assistant Secretary position to Interim Manager, Idaho Operations Office because "I felt he was the person best qualified to send out an interim basis to backfill for [female manager] while we did the recruitment." The Secretary stated that the male SES employee worked as a Deputy Assistant Secretary and "had responsibilities for the physical assets at the Idaho Nuclear Laboratory, was responsible for the Manager and the Staff out in the Idaho Operations Office, and I felt he was the person best qualified to send out on an interim basis to backfill for [female manager] while we did the recruitment."
The Secretary testified that during the relevant time, he reassigned a named female SES employee as the Acting Deputy Assistant Secretary during the male SES employee's reassignment, because of her experience as the Director of the Office of Light Water Reactor Deployment. The Secretary stated that the female SES employee "had the managerial experience, technical background, budget background, to take over, to step in place as the Acting Deputy Assistant Secretary during [Deputy Assistant Secretary's] absence or during [Deputy Assistant Secretary's] reassignment."
The Secretary further testified that he reassigned a named male SES employee who worked as a Deputy to the Deputy Assistant Secretary to temporarily run the Office at the Light Water Reactor Deployment. Specifically, the Secretary stated that the named male SES employee "had an extensive career at the Nuclear Regulatory Commission. He's a lawyer by training, and I felt his skill set was the right one to move over to temporarily run the office at the Light Water Reactor Deployment, given the scope of work that office was responsible for at the time."
The Secretary stated that he reassigned the Acting Director for Laboratory Facilities Management back to his actual position as the Director of Integrated Safety and Program Assurance. The Secretary stated that he then appointed a named female Team Leader of the Office of Light Water Reactor Deployment as the Acting Director, Office of Laboratory Facilities based on her experience in the areas of facility management, budget, safeguard and security, research and development. The record reflects that the Acting Director, Office of Laboratory Facilities was also selected based on her participation in the Agency's SES Candidate Development Program. The record further reflects that the Secretary felt that she was qualified because she had gone through a rigorous selection process.
The Secretary stated that he also reassigned the Deputy Director in the Office of Facilities Management to the Special Assistant to the Director of Laboratory Facilities Management Team "awaiting the processing of the paperwork and transfer. He was initially detailed to NNSA and subsequently was permanently reassigned to NNSA, per his request." Furthermore, the Secretary testified that he reassigned the Acting Director, Office of Recycled Fuel Development to the Deputy Director position in the Office of Laboratory Facilities Management.
Moreover, the Secretary testified that during the relevant period, he was not aware of Complainant's prior protected activity. The Acting Assistant Secretary stated, however, that while he was aware that Complainant had issues with management.
The Acting Director for Laboratory Facilities Management, also Complainant's supervisor, testified that during the relevant period the Senior Management made an announcement that the purpose of management reassignments "was to ensure the continued efficient operation of the organization...when I said I don't know how it would be more efficient, my basis for that statement was, I was not involved in the decision-making on those specific management reassignments. Therefore, I'm not in a position to say how Senior Management felt those particular assignments were going to maintain efficient operation. As a Manager involved in those decisions, my actions are limited to the area of responsibility assigned to me, doing everything I can personally ensure that the operations under my span of control are executed in an efficient manner."
Complainant, on appeal, erroneously notes that the AJ erred issued a decision without a hearing, finding no discrimination. Complainant argues further that the AJ incorrectly determined that the Secretary was not aware of his prior protected activity. Complainant argued that the AJ also incorrectly "found evidence of a legitimate, non-discriminatory reason. The Judge spends several paragraphs discussing the possible reasons why [Secretary] hired [Acting Director, Office of Laboratory Facilities Management]. However, there is no discussion as why [Secretary] would not have hired [Complainant]."
Furthermore, Complainant argued that the AJ erred finding that there was no adverse action "when another employee was promoted to a SES position. Appellant did demonstrate that there was another person who was promoted to a SES position, [Acting Director, Office of Laboratory Facilities Management]."
The instant appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, we find that Complainant, on appeal, incorrectly argued that the AJ improperly issued a decision without a hearing. We find that the record indeed reflects that the AJ conducted a hearing on March 1, 2012. 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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the AJ's decision, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 18, 2012
__________________
Date
1 The record reflects that on September 15, 2010, Complainant submitted a letter of resignation.
2 The record reflects that during the hearing, Complainant withdrew religion as a basis.
3 Because we affirm the AJ's finding of no discrimination concerning claim 1, we find it unnecessary to address alternative disposition of this claim (i.e. failure to state a claim).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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