[Redacted], Cameron M., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal No. 2020003002 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cameron M.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Request No. 2021003448 Appeal No. 2020003002 Agency No. DEA-2019-00021 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003002 (April 29, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, we find that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and we deny the request. However, on our own motion, we will reconsider the previous decision. 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. 2021003448 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent, GS- 13, at the Agency’s Field Division Office in Los Angeles, California. Report of Investigation (ROI), at 4. Complainant worked for the Agency for 22 years, until his November 30, 2018 mandatory retirement date. ROI, a 68. On September 28, 2018, Complainant learned that management never submitted his memorandum for an exemption to the mandatory retirement age to Agency headquarters for consideration. Id. at 78. According to Complainant, on September 28, 2018, he asked the Assistant Special Agent-in- Charge (ASAC) whether he would be granted an exemption to his mandatory retirement date. Id. at 79-80. The ASAC responded that both he and the Group Supervisor thought that Complainant had withdrawn his request. Id. Complainant averred that when the Group Supervisor heard that he still was seeking an exemption, the Group Supervisor phoned him saying he thought Complainant said he “was done.” Id. at 80. Complainant attested that he was later informed that his memorandum was located and the Special Agent-in-Charge (SAC) was reviewing his exemption request. Complainant stated, however, that he never received a formal response either granting or denying his request. He believed that his request for an exemption was never forwarded to Agency headquarters for consideration. Id. at 91. According to the SAC, Complainant’s memorandum contained factual errors, including an erroneous entry for his date of birth and an overall misrepresentation of his case work. Id. at 167. The SAC believed that Complainant had used someone else’s memorandum as a guide, and inadvertently maintained language applicable to the original author. Id. The SAC averred that he never signed or forwarded Complainant’s memorandum for a decision because of these errors. Id. at 169. Instead, stated the SAC, Complainant was asked to fix the errors, but no re-drafted memorandum was ever submitted. Id. at 170. The SAC asserted that no one advised him that Complainant had decided he no longer wanted to pursue the exemption, so that was not a factor in his decision not to submit the memorandum to headquarters. Id. at 168. The Associate Special Agent-in-Charge (Associate SAC) also explained that management found that Complainant’s memorandum contained factual errors with regard to his duties and accomplishments, so Complainant was asked to correct the mistakes before the memorandum could be sent to headquarters. Id. at 190. The Associate SAC averred that Complainant responded that he was not going to correct or change his original memorandum, and Complainant went on leave for the last weeks before his retirement date. Id. at 191, 195. Similarly, the ASAC stated that Complainant was asked to redo the memorandum, but also noted that during this time Complainant was in negotiations with the Group Supervisor to obtain a job with a contracting company. Id. at 213. According to ASAC, Complainant could not decide between the exemption or the outside contracting job. Id. The ASAC further explained that in reviewing the memorandum after Complainant corrected some grammatical errors, he and other officials found that it contained obvious incorrect facts about Complainant’s career. Id. at 216. 2021003448 3 According to the Group Supervisor, he had several conversations wherein Complainant expressed that he was not interested in an exemption from mandatory retirement and that he was interested in looking for a contracting position outside of the Agency. Id. at 235-237. The Group Supervisor noted that with Complainant’s language skills, he could have worked with a variety of different federal agencies doing linguistic or law enforcement work. Id. On November 30, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination on the bases of race, age (57), sex (male), national origin (Middle Eastern), and reprisal for prior protected EEO activity when he learned that his request for an exemption from mandatory law enforcement retirement was not submitted to headquarters for review. Following the investigation, the Agency provided Complainant with a copy of the Report of Investigation (ROI) 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). Therein, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency specifically found that management officials provided legitimate, nondiscriminatory reasons for its actions, and Complainant did not demonstrative that its reasons were pretextual based on his protected classes. In our previous decision, Appeal No. 2020003002, we found that the record did not show that the Agency provided Complainant with the ROI and the right to request a hearing before an AJ. We therefore ordered the Agency to send the ROI to Complainant and provide him with notice of his right to request a hearing. We further ordered that if Complainant requested a final decision without a hearing, the Agency should issue a final decision within sixty (60) days of receipt of Complainant’s request. RECONSIDERATION In its request for reconsideration, the Agency asserts that it previously provided Complainant with the ROI and the notice of the right to request a hearing before an AJ. The Agency maintains that Complainant made the decision to forego a hearing before an AJ and requested that the Agency issue a final decision addressing the merits of his complaint. The Agency contends that because Complainant mailed his appeal to the Agency in hard copy, the Agency’s EEO Office did not receive immediate notice of his appeal due to Agency EEO staff being unable to access mail due to the COVID-19 pandemic. The Agency maintains that due to an administrative oversight, the documents related to Complainant’s receipt and review of the ROI were inadvertently omitted from the uploaded appeal documents. Therefore, the Agency requests that we reverse our previous decision and render a decision addressing the merits of Complainant’s complaint. As we noted in our previous decision, the Commission has vacated an agency’s final decision when the agency has failed to provide evidence that a complainant was in actual receipt of the ROI and notice of right to request a hearing. See Landin v. Dep’t of Homeland Sec., EEOC Appeal No. 0120110485 (Aug. 31, 2012); Hill v. U.S. Postal Serv., EEOC Appeal No. 2021003448 4 01A60865 (May 12, 2006). Here, the Agency does not dispute that the documentation related to Complainant’s receipt and review of the ROI was inadvertently omitted from the uploaded appeal items. Therefore, we find that the Agency’s request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. However, on our own motion, we shall reconsider the previous decision. Consequently, we will now address, for the first time, the merits of Complainant's complaint. CONTENTIONS ON APPEAL On appeal, Complainant maintains that a large percentage of the workforce was scheduled to retire, and the Attorney General announced that he wanted all exemptible Special Agents to be retained. Complainant asserts that his supervisors expressed their support of his obtaining an exemption, so he completed the required memorandum and sent it up his chain-of-command. Complainant maintains that when he inquired about his memorandum, he was told that the Group Supervisor said he (Complainant) was no longer interested in the exemption. Complainant, however, argues that at no time did he communicate to anyone that he wanted to withdraw his request for an exemption. Complainant further asserts that the Associate SAC said that he had been denied the exemption due to his reputation, wherein he (Complainant) responded that he had always received ratings of “outstanding.” Complainant denies that management provided him with the memorandum to correct prior to his last day of employment. Rather, Complainant contends that, when he was out on leave, he was told that a coworker made a few grammatical changes to the memorandum. Complainant contends that it makes no sense that the memorandum was not returned to him, especially if it needed corrections. Complainant asserts, moreover, that although he was on leave during the final weeks before his mandatory retirement date, he was in possession of a government phone whereby he could have received a text, a telephone call, or an e-mail directing him to make to the changes to the memorandum for re-submission. STANDARD OF REVIEW 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”). 2021003448 5 ANALYSIS AND FINDINGS Disparate Treatment 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). He must generally establish a prima facie case by demonstrating that 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, assuming, arguendo, that Complainant established a prima facie case of discrimination based on his protected classes, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The SAC explained that he was the management official who made the final decision not to forward Complainant’s memorandum for consideration. ROI, at 167-170. According to the SAC, Complainant’s memorandum contained factual errors regarding his casework. Id. The SAC averred that he never forwarded Complainant’s memorandum for a decision because the memorandum was factually incorrect, so he could not sign it. Id. Further, the SAC said that Complainant was asked to fix the errors, but no re-drafted memorandum was ever submitted. Id. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant argues, in pertinent part, that he never communicated a desire to withdraw his memorandum requesting the exemption. According to Complainant, the Associate SAC said that he had been denied the exemption due to his reputation. In response, asserts Complainant, he noted his history of outstanding ratings. Complainant denies that management provided him with the opportunity to correct the memorandum prior to his last day of employment, and asserts that management could have contacted him about the memorandum through his government issued phone while he was on leave before his retirement date. Upon review, we find that Complainant has not established that the Agency’s reasons were a pretext for unlawful discrimination. In so finding, we note that multiple management officials attested that Complainant’s initially submitted memorandum contained multiple factual errors about his experience and career. The record contains the original memorandum submitted by Complainant and an edited version wherein supervisors noted the alleged factual errors regarding Complainant’s work experience. ROI, at 267-272. 2021003448 6 For example, in one portion of his memorandum, Complainant wrote, “[He] is the primary contact for the [Sensitive Investigative Unit (SIU)] anti-money laundering (AML) departments of foreign governments, banks, gaming industry leaders, and other financial institutions.” Id. at 268. But management marked the memorandum, noting: Complainant was never assigned as the SIU primary contact for AML departments . . . . No single person within SIU is assigned this responsibility. No such role exists. Id. at 271. Here, Complainant has not asserted that the factual errors identified by management in his memorandum are untrue. He does, however, dispute his supervisor’s statements regarding being given the opportunity to correct the memorandum. Complainant steadfastly maintains that he was never provided with the memorandum to correct prior to his retirement date. However, Complainant did not request a hearing before an EEOC AJ, and therefore we do not have the benefit of an AJ's credibility determinations regarding the witnesses in the case. We find no evidence in the record before us that the Agency was motivated by discriminatory or retaliatory animus, and we determine that Complainant has not established that he was subjected to discrimination as alleged. CONCLUSION After a review of the Agency's request for reconsideration, we find that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and we DENY the request. However, after reconsidering the previous decision on our own motion, based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s decision finding no discrimination. Because this is the first time that Complainant's complaint has been addressed on the merits, we will provide the parties with reconsideration rights. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021003448 7 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003448 8 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 February 16, 2022 Date