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

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020001170 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Santo D.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2020001170 Hearing No. 570-2017-01488X Agency No. DEA-2017-00291 DECISION On November 15, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 18, 2019, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Special Agent/Staff Coordinator, GS-14, at the Agency’s Drug Enforcement Administration, Special Operations Division, Europe Region, in Chantilly, Virginia. On March 8, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and reprisal for prior protected EEO activity when, on October 18, 2016, Complainant learned that he had not been selected for the position of Assistant Middle East Regional Director for Ankara, Turkey, under Vacancy numbers CMB-16- 354 and CMB-16-385. 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. 2020001170 2 The Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during its investigation of the complaint. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the decision found that Complainant failed to show that the Chief of Operations (“CO”) (African American), against whom Complainant had testified in a prior EEO complaint brought by another employee, influenced the selection process, or that Complainant’s non-selection was based on a discriminatory or retaliatory motive. The instant appeal followed. 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. (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”). Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Complainant alleged that he testified against CO in a previous EEO complaint and CO was the one who retaliated against him in the instant complaint. 2020001170 3 Specifically, Complainant alleged that he made the [best qualified (BQ)] list under the first announcement but that no selection was made. Complainant alleged that CO asked the Deputy Chief of Operations (DCO: Hispanic) if he knew who was being considered for the position and when DCO mentioned Complainant, CO was opposed and said that the position should be re- posted. For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. The burden next shifts to the Agency to articulate a legitimate nondiscriminatory reason for its action. CO averred that he was a member of the 11-person Career Board that made recommendations but that the final decision was made by the selecting official (SO). According to CO, the Board did not issue a recommendation for the first announcement under announcement number CMB-16-354 since that announcement was cancelled. The Board did issue a recommendation memo for the second announcement under announcement number CMB-16-385, CO averred, and that recommendation included three applicants but did not include Complainant’s name. When asked why the selectee’s name was included but not Complainant’s, CO averred that: As a Board Member, I cannot recall all of [Complainant’s] experiences but at the time of the meeting the Board collectively thought [the selectee] was better prepared for the position at the time. . . . I would say that [the factors leading the Board to believe the selectee was better than Complainant] included his experience as a Supervisor at the first-line level, his investigative experience, his liaison experience, his ability to build relationships, his ability to communicate effectively with his subordinates, his ability to inspire his employees and his subordinates. I can only speak from my perspective as one Board Member. I cannot speak for the entire Board. CO further denied having any involvement with the first announcement being cancelled and denied that he unduly influenced the Board to reject Complainant. The Regional Director (“RD”) (White) averred that he was the one who cancelled the first announcement and had it re-advertised, and that the reason he did so was because he wanted to “obtain a broader candidate list after the release of the 2016 GS-15 SAPP [sic] scores,” and that other vacancy announcements were similarly cancelled for the same reason around the same time. RD further averred that he recommended two applicants to the Career Board, including the selectee, “because in my opinion, they were the best qualified.” Additionally, according to RD, while two management officials provided references for Complainant, the other two declined. Finally, RD denied that CO instructed him to cancel the first announcement, or that race or retaliation played any part in the Agency’s actions. The record contains a contemporaneous email from RD stating “I am requesting that this BQ list be canceled in order to obtain a broader candidate list after the 2016 GS-15 scores are released. On the current list, some candidates had withdrawn or had not completed their requisite HQ time as GS-14s.” 2020001170 4 The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Complainant averred that, compared to the selectee: I have more DEA international experience, and I was senior to [the selectee]. I was in Headquarters in the Office of Global Enforcement where I was the Staff Coordinator for the Middle East Region. He also had just reported to Headquarters and hadn't had as much time in Headquarters and he was in a completely different arena. He was in the Office of Professional Responsibility in the Los Angeles Field Division. While the record supports Complainant’s contention that he had more international experience and was senior to the selectee, we note that Complainant also maintained that the selectee was chosen because he and RD were friends. While favoritism may be unfair, it is not the same thing as reprisal or discrimination based on race, nor is it prohibited under the laws enforced by this Commission. With regard to Complainant’s contention that CO was behind the canceling of the initial position once he learned Complainant was on the BQ list, Complainant has provided no evidence to support such a claim. Instead the record shows that RD was responsible for canceling the first posting, and RD denied being influenced by CO to do so. Similarly, CO denied influencing RD or any of the Career Board members. Nor does Complainant contend that RD, who is the same race as Complainant, was the one who retaliated or discriminated against him based on race. Following a review of the record, we find that Complainant has not shown, by a preponderance of the evidence, that the Agency’s articulated reason for its action is a pretext to mask discrimination or reprisal. Nor has Complainant shown that Agency officials harbored discriminatory animus against Complainant’s protected bases. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred and we AFFIRM the Agency’s final decision. 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. 2020001170 5 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. 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. 2020001170 6 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 August 3, 2021 Date