Kelley P., Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Mar 9, 2015

0120123094 (E.E.O.C. Mar. 9, 2015)

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

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 0120123094

Agency No. DEA-2011-00927

DECISION
Complainant filed an appeal from the Agency’s June 12, 2012 Final Decision concerning his
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. For the following reasons, the Commission AFFIRMS in part, and
REVERSES in part, the Agency’s Final Decision, in which the Agency found no
discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Special Agent at the Agency’s facility in San Diego, California. On September 1, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of sex (male) and in reprisal1

for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
1. On April 28, 2011 and June 29, 2011, Complainant’s requests for a
reassignment from the San Diego Field Division to the Washington, D.C. -
Metropolitan area, pursuant to the Married Core Series Transfer Policy (MCSTP),
were denied by the Career Board.

2. On May 17, 2011, Complainant learned that he was not selected for the position
of Supervisory Special Agent, GS-1811-14, Washington Division, advertised under
Vacancy Announcement Number CMB-11-287.

1 Only claim three is alleged on the basis of reprisal for prior protected activity.
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3. On September 1, 2011, Complainant learned that he was not selected for the
position of Criminal Investigator (Group Supervisor), GS-1811-14, Washington
Division, advertised under Vacancy Announcement Numbers CMB-11-207-1 and
CMB-11-224-1.

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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
Final Decision pursuant to 29 C.F.R. § 1614.110(b).

In its Decision, the Agency found that Complainant failed to show that he was subjected to
discrimination on any basis as alleged in his complaint. Specifically, the Agency found that
Complainant requested reassignment to the Washington, D.C. area after his wife accepted a
position in the Agency’s headquarters location in Arlington, Virginia. Complainant’s request
was denied and his subsequent request for reconsideration of the Agency’s denial was also
denied, without any explanation. The Agency found that while Complainant was not informed
of the reasons his request for reassignment was denied by the Career Board, other
circumstances indicated that Complainant’s sex was not the Agency’s motivation for denying
his requests. The Agency found that the Career Board included representatives from EEO,
Human Resources, and the Inspectors General and so, it was highly unlikely that the Agency’s
decision was motivated by discrimination. The Agency noted that the Secretary of the Career
Board also denied that the decision was discriminatory.

Regarding Complainant’s nonselection claims, the Agency found that the recommending
official, SO, articulated legitimate, nondiscriminatory reasons for her selections. The Agency
noted that no candidates for any of the identified selections were interviewed and that SO
submitted recommendations to the Career Board, identifying the candidates she considered the
best qualified to fill the identified vacancies. The Agency found that for the Criminal
Investigator and Supervisory Special Agent positions, SO selected candidates that possessed
demonstrated skills in building coalitions with other law enforcement agencies. SO noted that
Complainant’s accomplishments were in technology rather than day to day operations. The
Agency found that Complainant’s qualifications were not plainly superior to those of the
selected candidates and did not “jump off the page” to indicate discrimination. Additionally,
the Agency found no evidence that Complainant’s sex or prior EEO activity motivated SO’s
selections, even if SO erred in her evaluation of Complainant’s accomplishments. The Agency
considered Complainant’s contention that SO preferred to promote employees who already
worked with her. The Agency found that even if that was true, such a preference would not be
discriminatory.

The Agency’s Final Decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

0120123094

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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. (November 9, 1999) (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). Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. 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).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force

, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).
Nonselections

In the instant case, we find the record supports the Agency’s Final Decision regarding
Complainant’s nonselection claims. Specifically, we find that with respect to Vacancy
Announcement CMB-11-287, the selectee (E1) possessed the day to day operational experience
SO sought. We note that E1 is also a male candidate, and that E1’s qualifications include
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experience in coordination with local law enforcement agencies. We do not find that
Complainant’s qualifications were plainly superior to those possessed by E1. We consider
Complainant’s belief that E1 was one of SO’s “preselected favorites.” We find that
Complainant provides no explanation for SO’s preference, assuming he is correct, other than
SO’s familiarity with E1 and E1’s accomplishments. We find that Complainant did not show
that more likely than not discrimination motivated SO’s decision to recommend E1 (and not
Complainant) to the Career Board for selection.

With respect to Vacancy Announcement CMB-11-207-1, we find that the selectee, E2, is a
female applicant, recommended for selection by SO because she had demonstrated leadership
skills, worked well with others, and with multi-agency law enforcement personnel. SO
recommended E3, a male candidate for Vacancy Announcement CMB-11-224-1, in part,
because he had already served as Acting Group Supervisor and backup Group Supervisor for
the same group. We find, as did the Agency, that Complainant did not show that his
qualifications were plainly superior to those possessed by E2 and E3, and Complainant did not
present evidence that SO’s reasons for her recommendations were a pretext to mask
discrimination. We find, as did the Agency, no evidence that Complainant’s sex or prior EEO
activity motivated SO’s decisions regarding which candidates to recommend to the Career
Board.

We find that SO was familiar with the performance of all three candidates, E1, E2, and E3,
supporting Complainant’s contention that SO preferred candidates who already worked with
her. There is no indication that Complainant had previously worked with SO. We find that
Complainant did not present evidence that more likely than not the identified selections were
motivated by discrimination.

Reassignment request

With respect to the Agency’s denial of Complainant’s request for reassignment under the
Agency’s Married Core Series Transfer Policy, we find the Agency failed to articulate a
legitimate, nondiscriminatory reason for its actions. The record reflects that Complainant
requested a transfer to the Washington, D.C. area after his wife accepted a lateral reassignment
that required her to relocate there. In his affidavit, Complainant identifies eight female
employees whose requests for transfer under the same program were granted.2

We find that
Complainant has established a prima facie case of sex discrimination. We then turn to the
Agency’s reasons for denying Complainant’s request.
As described in the Agency’s Final Decision, Complainant’s request was directed to the
Agency’s Career Board. The record contains the minutes of the Ad Hoc Career Board
meetings at which Complainant’s request was considered and denied.

2 The Agency’s Final Decision states that of 22 requests received (during a specified time
frame), the Agency granted 16 and that 11 of those were granted to female employees and five
were granted to male employees.
0120123094

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AD HOC CAREER BOARD MEETING MINUTES FROM 04-27-2011

[Identification of the members of the Career Board present that day]

1. [Complainant], San Diego Division request for a transfer to the Washington,
DC area was denied. [Complainant] to remain at current assignment.

Also included are the following minutes from June 29, 2011.

AD HOC CAREER BOARD MEETING MINUTES FROM 06-29-2011

[Identification of the members of the Career Board present that day]

. . . .

2. [Complainant], San Diego Division, request for reconsideration of a
reassignment to the Washington, DC area was denied.

*[Complainant’s] initial request was denied @ the Ad Hoc Meeting on April 27, 2011

The meeting minutes indicate the identity of the Agency officials in attendance and the official
preparing the minutes (B1), but the remaining contents of the minutes are redacted. The
Commission notes that nothing in the record indicates the reasons for the redaction and we
decline to assume anything about the redacted portions. As noted in the Agency’s Final
Decision, the minutes do not indicate specifically which Career Board member or members
denied Complainant’s request and the minutes provide no information regarding the reason for
the Career Board’s decision.

We find the Agency acknowledged that the failure of the Career Board to provide a substantive
reason for its denial creates a problem. The following acknowledgment appears in the
Agency’s Final Decision.

In this case, it was troubling that [Agency] management did not clearly articulate a
legitimate, non-discriminatory reason for denying complainant's request for a transfer
under the MCSTP. In two memoranda located in the case file, [B1] indicated that
complainant's request for the transfer and his request for reconsideration were denied,
but [B1] provided no specific reason for those decisions. In the absence of clear
reasons, it is difficult to determine if [Agency] management acted with prohibited
discriminatory intent.

Additionally, in a memorandum in the record from the Department of Justice’s Complaint
Adjudication Officer (CAD) to the Agency’s EEO Officer, dated June 12, 2012, the CAD
cautions the Agency regarding the “policy of declining to provide reasons for the decisions of
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the Agency Career Board.” The CAD advises that “. . . [Agency] officials should be willing
to provide legitimate, nondiscriminatory reasons for the employment-related decisions of its
Career Board, and failure to provide such reasons could form the basis for unfavorable EEO
claim decisions in the future.”

We find the future is now. The Agency has not escaped a finding of discrimination in the
instant case based upon the blanket denials of discrimination by the Agency officials serving on
the Career Board at the time of Complainant’s request. We decline to guess which Agency
official actually made the decision, though it appears B1 takes responsibility for it. Similarly,
the record does not disclose what roles other Career Board members served in the decision-
making process. Additionally, we are not persuaded by the Final Decision’s reliance on the
Agency’s policy that such transfer decisions are discretionary and made consistent with staffing
needs of the Agency, while failing to indicate the specific reasons for the denial of
Complainant’s request.

In its Final Decision, the Agency states that Complainant failed to present evidence to impeach
the statements of the Career Board members who denied being motivated by sex
discrimination. We find the Agency failed to provide Complainant with any meaningful
opportunity to demonstrate the Agency’s decision was discriminatory or pretextual in the
absence of any clear, specific statement regarding the reasons for denying Complainant’s
transfer request.

In light of the Agency's failure to provide a sufficient articulation of the reasons for denying
Complainant’s request for reassignment to the Washington, D.C. area, as described in
Complainant's complaint, the Commission finds that the Agency failed to overcome
Complainant's prima facie case of sex discrimination. Accordingly, we find that the Agency
discriminated against Complainant on the basis of sex as alleged.

CONCLUSION
Based on a thorough review of the record, we AFFIRM in part the Agency’s finding of no
discrimination with respect to Complainant’s nonselection in claims (2) and (3). We
REVERSE the Agency's Final Decision finding of no sex discrimination with respect to the
denial of Complainant’s request for reassignment in claim (1) and we REMAND claim (1) to
the Agency to comply with the remedial relief set forth in the Order herein.

ORDER
1. Within thirty days of the date this decision becomes final, the Agency shall conduct a
supplemental investigation to determine the compensatory damages under Title VII to which
Complainant is entitled as a result of the discrimination identified herein. Complainant shall be
given an opportunity to establish a causal relationship between the discrimination and any
pecuniary or nonpecuniary losses. Complainant shall cooperate in the Agency's efforts to
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compute the amount of compensatory damages he is entitled to as a result of the discrimination
and shall provide all relevant information requested by the Agency.

2. Within ninety days of the date this decision becomes final, the Agency shall issue a new
final decision addressing the issue of compensatory damages. The final decision shall contain
appeal rights to the Commission. The Agency shall submit a copy of the final decision to the
Compliance Officer at the address set forth herein.

3. Within thirty days of the date this decision becomes final, if Complainant is employed
by the Agency, the Agency shall tender an unconditional offer to Complainant to reassign
Complainant to the Washington, D.C. area, to an appropriate position, at the appropriate grade
level and step, consistent with his request under the Married Core Series Transfer Policy
(MCSTP). The Agency’s offer shall include a reasonable amount of time for Complainant to
consider the offer of reassignment, but not less than 30 days.

4. The Agency shall provide eight hours of EEO training to the responsible management
officials still employed by the Agency regarding their responsibilities under Title VII.

5. The Agency shall consider taking appropriate disciplinary action against the responsible
management officials still employed by the Agency. The Agency shall report its decision to the
Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it
shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline. If any of the responsible
management officials have left the Agency's employment, the Agency shall furnish
documentation of their departure date(s).

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include evidence
that the corrective action has been implemented.

POSTING ORDER

(G0914)
The Agency is ordered to post at its San Diego, California Office and Washington D.C. Area
Field Office in Arlington, Virginia, copies of the attached notice. Copies of the notice, after
being signed by the Agency's duly authorized representative, shall be posted both in hard copy
and electronic format by the Agency within 30 calendar days of the date this decision becomes
final, and shall remain posted for 60 consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The Agency shall take reasonable
steps to ensure that said notices are not altered, defaced, or covered by any other material. The
original signed notice is to be submitted to the Compliance Officer at the address cited in the
paragraph entitled “Implementation of the Commission's Decision,” within 10 calendar days of
the expiration of the posting period.

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ATTORNEY'S FEES

(H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(l)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be
paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not
to the Equal Employment Opportunity Commission, Office of Federal Operations -- within
thirty (30) calendar days of this decision becoming final. The Agency shall then process the
claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION

(K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency's report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission's order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission's order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. §
1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §
1614.409.

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
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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

(T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
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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

Date
March 9, 2015