0320180051
07-17-2018
Lowell H.,1 Petitioner, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lowell H.,1
Petitioner,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Petition No. 0320180051
MSPB No. AT-0752-17-0241-I-1
DECISION
On May 17, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of 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. For the following reasons, we CONCUR with the MSPB's ultimate decision that Petitioner did not establish that he was discriminated against.
BACKGROUND
Petitioner worked as a Chief/Deputy Assistant Director at the Agency's Training Academy facility in Charleston, South Carolina. Petitioner alleged that the Agency discriminated against him on the bases of age (over 40) and reprisal for prior protected EEO activity when, on July 28, 2016, he received a directed reassignment to Headquarters in Washington, D.C; and after he refused to accept the directed reassignment, he was removed.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency's actions were appropriate, namely that Petitioner was offered a directed reassignment and he decided not to accept it, so he was removed from the Agency. The AJ also found that Petitioner did not prove his affirmative defenses. Petitioner argued that he was removed from his position because of his age2 and prior EEO activity. The AJ determined, however, that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that following a reorganization of the South Carolina office, it was determined that Petitioner's position was no longer needed; and as such he was offered a directed reassignment to the Washington, DC office. Petitioner was given 15 days to decide whether he would accept the position. He was also subsequently given an extension of time. When Complainant refused the directed reassignment, he acknowledged that his decision would end his career. The AJ found that Petitioner did not show that the Agency's reasons were pretext for discrimination.
In finding no discrimination, the Board relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the Board maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
Petitioner then filed the instant petition. Petitioner contends, among other things, that he established a prima facie case of reprisal. He alleges that this reassignment and removal were retaliation for his prior EEO complaint activity. Also, he maintains that management's contention that there was no operational need for keeping him as Deputy Chief in Charleston was false as the reorganization plan included back filling the position. Petitioner finds it inefficient to send him to Washington, DC and then to put someone else in his position to do essentially what he was doing in South Carolina. Further, Petitioner contends that he did not sign a mobility waiver and thus should not have been given a directed reassigned to Washington, D.C.
In response, the Agency contends, among other things, that the Commission should concur with the Board's decision. The Agency argues that Petitioner did not establish a prima facie case of reprisal, as the manager that made the decision to reassign Petitioner from Charleston to Washington, DC was not aware of Petitioner prior EEO activity. The Agency contends that Petitioner did not establish a cat's paw theory of discrimination3as he did not show that the manager who made the ultimate decisions was influenced by managers involved in Petitioner's prior EEO activity. The Agency asserts that the deciding manager found that because Petitioner was only supervising two employees at the time, his past experience as a Chief of Staff would be more useful in Washington, DC working on policy issues. Finally, the Agency maintains that a mobility clause was included in Petitioner's GS-1811-15 employment series.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
In Petitioner's case, we find that the Board erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of discrimination when the Agency removed him; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him, as alleged.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
In the instant case, Petitioner argued that he was subjected to reprisal and age discrimination when he was given a directed reassignment, and was subsequently removed when he failed to accept the reassignment. We find, that even if we assume arguendo that Petitioner established a prima facie case of reprisal and age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, that Petitioner was offered a directed reassignment because of a reorganization and Petitioner was terminated from his position because he refused to accept the directed reassignment. With respect to Petitioner's statements on appeal, that the reassignment was not necessary, because management was going to add positions to the office as a result of the reorganization; and that discriminatory animus must have been involved in the reassignment, we find that other than Petitioner conclusory statements he did not establish that the Agency's reasons were pretext for discrimination. We note that employers have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
__7/17/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 Petitioner did not discuss how his age was a factor. The managers that he claimed were involved in his prior EEO activity were all over 40 and similar in age to him.
3 Under the cat's paw theory of liability, an employer may be liable for the discriminatory animus of an employee or supervisor, who was not charged with making the ultimate employment decision. See Feder v. Dep't of Justice, EEOC Appeal No. 0720110014 (Jul. 19, 2012).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320180051
4
0320180051