0120141597
03-10-2016
Will K.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Will K.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120141597
Hearing No. 410-2010-00340X
Agency No. HS09FEMA00531
DECISION
On April 5, 2011, Complainant filed an appeal from the Agency's February 24, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision and REMANDS a claim for EEO Counseling.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant on the bases of age, disability and reprisal when:
1. On August 10, 2009, after his position as Supervisory Finance and Administration Section Chief was eliminated, it reassigned him to a non-supervisory position in an office outside of his region and;
2. On August 14, 2009, it denied him the opportunity to laterally move to a Supervisory Position which he qualified for, without competing for it.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Finance and Administration Section Chief at the Agency's Region IV Office in Atlanta, Georgia. In 2009, pursuant to the Post-Katrina Emergency Reform Act, the Agency's Disaster Operations Leadership issued Agency-wide guidance in connection with a reorganization of the Incidents Management Assessment Teams (IMATs). The Agency was required to reduce the IMATs from 15 full-time members to four with the goal of providing each Regional Office with one four-person IMAT after the reorganization. Complainant's position was one of eleven positions in Region IV that were eliminated as a result of the reorganization.
Managers in Region IV made efforts to find suitable placement for all employees whose positions had been eliminated because of the IMAT reorganization. With respect to identifying a suitable placement for Complainant, there were no unencumbered positions within Region IV at the GS-14 level within the same occupational series as Complainant's Finance and Administration Section Chief position. Following discussions with managers in the Office of the Chief Financial Officer (OCFO) at Agency Headquarters, Complainant was reassigned to a GS-14 level position classified within the same general occupational series whose duty station remained in Region IV in Atlanta, but reported to the OCFO at Agency Headquarters in Washington, D.C.
Soon after, Complainant requested to be reassigned to the supervisory Branch Chief position in the Region IV Regional Response Coordination Center (RRCC). The Director, Response Division (DRD) denied his request for the lateral transfer because the RRCC Branch Chief position was classified in a different occupational series from both the Finance and Administration Section Chief position (Complainant's IMAT position) and the Financial Manager-Disaster Comptroller (the OCFO position identified for Complainant after the IMAT reorganization).2
The Deputy Regional Administrator (DRA) met with Complainant twice in August 2009 to discuss his request. As a courtesy, DRA sent Complainant's resume to Headquarters for an informal review by a position classifier to determine whether Complainant's skill set was acceptable for the RRCC Branch Chief position. The position classifier indicated that Complainant's resume rendered him "basically" - but not "highly" - qualified for the RRCC Branch Chief position. DRA informed Complainant that he was welcome to compete for the position. The Region IV Regional Administrator, not Complainant's managers, made the decision to advertise the RRCC Branch Chief position. Complainant applied for the RRCC Branch Chief position when it was advertised, but he was not selected for the position.
On November 2, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (migraines), age (60), and reprisal (absences under the Family and Medical Leave Act (FMLA)) when it reassigned him to a position outside of Region IV and when it denied him a lateral transfer to the RRCC Branch Chief position, without competing for it.
On May 13, 2010, Complainant requested a hearing before an EEOC Administrative Judge (AJ) when he did not receive a final agency decision (FAD) within 180 days. On October 13, 2010, Complainant withdrew his request for a hearing and the AJ issued an Order of Dismissal remanding the case back to the Agency for a FAD and dismissing the hearing.
On February 24, 2011, the Agency issued the FAD concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. As an initial matter, the Agency dismissed Complainant's claim of reprisal because he claimed that he was retaliated against for using leave under FMLA, not for any protected activity under EEO statutes.
In regards to Complainant's claim that he was discriminated against on the bases of age and disability when he was reassigned to a position outside of Region IV, the Agency found that his managers provided a legitimate non-discriminatory reason for its action. Specifically, they reassigned him to a position that was essentially the same as his previous position because it was in line with his prior duties, responsibilities and grade. Additionally, DRD stated that "none of the employees moved out of the region, including [Complainant], whose duty station remained Atlanta."
DRD also stated that she did not grant Complainant's request to transfer to the RRCC position because it was not in the same job series as his current and former positions and that the position was not advertised yet. DRA stated that she offered to help Complainant by asking a position classifier to review his resume. She stated that the position classifier deemed Complainant to be "basically" qualified, but not "highly" qualified.
The Agency found that Complainant did not produce any evidence that the manager's reasons were pretext for discrimination. While Complainant argued that two employees in Regions II and V held the same position as he did, but were treated differently, he did not present any evidence that they were outside his protected classes. Moreover, the Agency found that they were not similarly situated because they were not in the same region as Complainant and they did not report to Complainant's managers.
Complainant filed the instant appeal on April 5, 2011, and submitted a brief in support of his appeal on April 27, 2011. The Agency filed an opposition brief on May 22, 2014 arguing that Complainant's appeal was untimely; he waived his right to amend his formal complaint and; his discrimination claim based on age and disability is deficient because he cannot establish a prima facie case since he has not shown that similarly situated coworkers outside of his protected bases were treated more favorably.
Complainant then filed a Reply to the Agency's opposition brief on June 2, 2014. He argues that the appeal is timely because it was received by the Commission on April 5, 2011. He also states that it is the Agency's procedural failure for not amending his case, which cannot be a basis for dismissing his amendment. In regards to his prima facie case of discrimination based on age and disability, Complainant alleges that he was treated differently than approximately 30 other displaced employees.
CONTENTIONS ON APPEAL
In his appeal, Complainant alleges that the Agency erroneously dismissed his retaliation claim and that he can establish a prima facie case of retaliation and; that the Agency discriminated against him based on age and disability when it reassigned him to the OCFO.
ANALYSIS AND FINDINGS
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").
Disparate Treatment
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, she 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 her 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).
On appeal, Complainant alleges that the Agency erroneously dismissed his retaliation claim and that the FAD did not address this claim at all. Additionally, in his appeal, Complainant alleges that he can establish a prima facie case of retaliatory discrimination for filing the instant EEO complaint when the Agency forced him to change offices to make room for another employee. The record shows that Complainant submitted an amendment to his complaint to include this new claim, which appears to have been received by the Agency in November 2009.
Pursuant to 29 C.F.R. � 1614.106(d), a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related in the formal complaint. In this case, Complainant requested to amend his complaint by adding a claim based on retaliation that he was forced to change offices. This claim is not like or related to his initial discrimination claims regarding being reassigned to a position outside of Region IV and the denied the lateral transfer to the RRCC position. As such, his complaint should not have been amended but the Agency should have provided EEO counseling on this matter. Since the Agency did not counsel or investigate this issue, we must remand this claim for the Agency to provide Complainant with EEO counseling on his claim that he was discriminated against based on reprisal when he was forced to change offices, in accordance with the Order below.
However, in regards to Complainant's claim that he was discriminated against on the basis of reprisal when he was reassigned to a position outside of Region IV and when he was denied a lateral transfer to the RRCC position, we note that the Commission defines protected activity as (1) opposing a practice made unlawful by one of the employment discrimination statutes; or (2) filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statue. EEOC Compliance Manual on Retaliation, No. 915.003 at 8-11. C. 1 (May 20, 1998). Complainant's reprisal claim is based upon his use of leave under FMLA, which is not considered protected activity for the purposes of a reprisal claim. Additionally, Complainant's protected EEO activity of filing his EEO complaint occurred after the alleged discriminatory acts. Accordingly, the Agency's dismissal of Complainant's reprisal claim that he was discriminated against when the Agency reassigned him to a position outside of Region IV and when it denied him the transfer to the RRCC position was correct and is AFFIRMED.
Complainant alleges that the Agency discriminated against him based on age and disability when it reassigned him to OCFO. He claims that the Agency's legitimate non-discriminatory reason for the reassignment is pretext for discrimination because when he was assigned to his new position, his job series changed from 0501 to 0505. Complainant argues that the Agency's articulated legitimate non-discriminatory reason is contradictory. He further argues that two peers in the same position as Complainant were reassigned within their regions, without having to compete. Complainant alleges that the Agency reassigned him to a position outside of Region IV in an attempt to force him to retire earlier than planned. Additionally, Complainant alleges that his managers were aware of his disability and that DRD refused to place him in the RRCC position because of concerns that he would miss work due to his disability and that he was held to a higher "highly" qualified standard while others affected by the reorganization were transferred into available positions.
While Complainant refers to two other employees who were reassigned to positions within their respective regions after the reorganization and claims that he was the only employee out of about 30 who was reassigned outside of his region, he has not provided any additional information about any of these employees. Specifically, he has not established that they fall outside of his protected bases; so accordingly, he has not established a prima facie case of discrimination based on age and disability when he was reassigned to a position outside of Region IV.
However, assuming, arguendo, that he had established a prima facie case of discrimination based on age and disability, the Agency articulated a legitimate non-discriminatory reason for its actions. After the reorganization, his managers reassigned him to a position that was comparable to the one he held prior to the reorganization. While Complainant argues that his new position is outside of Region IV, his duty station did not change and he remained in Atlanta.
Complainant's managers stated that they denied him the lateral transfer to the RRCC Branch Chief position because it was not within the same job series as his current and former positions. Complainant argues that he has shown pretext for discrimination because his job series changed from 0501 to 0503 after the reorganization. However, his positions were both in the occupational series of finance, while the RRCC branch chief position was classified as a 0301 position, which is in a different occupational series. Additionally, DRA stated that Complainant previously held a "Finance or Administrative position" and not a Response position.
Complainant alleges that DRC and DRA made statements about Complainant not wanting the RRCC position because of the shift work, which shows that they wanted to force him to retire earlier than planned and that they believed he would be unable to perform in that position because of his use of leave due to his disability. However, DRC stated that she informed Complainant about the shift responsibility so that he was aware of the demands of the position and DRA denied saying that Complainant "did not want to work shift schedules." DRC and DRA denied discriminating against Complainant and he has not provided any evidence to support his claim that the Agency discriminated against him based on age and disability.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission finds that Complainant did not establish that the decision to reassign Complainant to a position outside of Region IV and the denial of his transfer to the RRCC position was based on age or disability.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision finding that the Agency did not discriminate against Complainant on the bases of age and disability when it reassigned him to a position outside of Region IV and when it denied him a lateral transfer to another position, without competing for it. However, we REMAND for the Agency to provide EEO counseling on Complainant's claim that he was discriminated against based on reprisal when he changed offices, in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency shall acknowledge to Complainant that it has received the remanded claim and notify him of the opportunity to obtain EEO counseling. Thereafter, the Agency is ORDERED to process the remanded claims in accordance with 29 C.F.R. � 1614.105 et seq. For the purpose of timeliness, Complainant's initial EEO contact on November 13, 2009, shall be deemed the date he first raised the remanded claims.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice of the opportunity for EEO counseling must be sent to the Compliance Officer as referenced below.
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.
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (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
__3/10/16________________
Date
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.
2 Complainant's positions in the finance area were within the 0500 series, while the RRCC position was classified in the 0300 series.
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