Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Jan 15, 2015

0120140085 (E.E.O.C. Jan. 15, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120140085

Agency No. HS-07-FEMA-00079

DECISION
Complainant filed an appeal from the Agency’s August 20, 2013 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 REVERSES the Agency’s Final
Decision finding no discrimination. We find that discrimination on the bases of race and sex
occurred as alleged and we REMAND the complaint to the Agency to provide Complainant
with remedies as ordered herein.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Cadre-On-Call-
Response Employee (CORE), Mobile Homes Operations Group (Supervisory) GS-0187-13, at
the Agency’s Baton Rouge Field Office in Baton Rouge, Louisiana. On April 23, 2007,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American) and sex (male) when:

1. On January 8, 2007, Management changed Complainant's duties and job title.

2. On January 8, 2007, Management moved Complainant to another work site.

3. On January 8, 2007, Management assigned Complainant's former duties to a
Caucasian female employee.

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The Agency found that Complainant did not timely request a hearing before an EEOC
Administrative Judge. Complainant does not contest that finding on appeal. After an
investigation, the Agency issued a Final Decision pursuant to 29 C.F.R. § 1614.110(b).

In its Decision, the Agency found that Complainant’s supervisor at the time of the incidents
described in the complaint was S1. Complainant alleged that he had been removed from his
position in Disaster Housing Operations (DHOPS) Chief in Baton Rouge, Louisiana, and
assigned to other duties at the Agency’s New Orleans, Louisiana facility, while Complainant’s
DHOPS position and duties were given to another employee, E1. The record shows that E1 is
a Caucasian, female employee. The Agency found that S1 spoke with the EEO Counselor
assigned to Complainant’s complaint and stated to the EEO Counselor that S1 assigned
Complainant to a special project in New Orleans that was more important than Complainant's
CORE duties. The Agency stated that S1 did not provide an affidavit during the investigation
of Complainant’s complaint because S1 had resigned from the Agency. The Agency found that
the EEO Counselor’s report articulated S1’s legitimate, nondiscriminatory reason for
reassigning Complainant’s duties. The Agency further found that Complainant had not
presented evidence to rebut S1’s explanation that his decision was based on the needs of the
Agency. The Agency found no evidence that S1’s reasons were a pretext to mask race and sex
discrimination. The Agency’s Final Decision concluded that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

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 was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction 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 . The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions.
, 411 U.S. at 802 n. 13
Texas Dep’t of Community Affairs v.
Burdine . To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual.
, 450 U.S. 248, 253 (1981)
Reeves v.
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Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Center v.
Hicks . , 509 U.S. 502, 519 (1993)

Once a complainant has established a prima facie case, the burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. Burdine . The
Supreme Court has described this burden as being met “if the [agency’s] evidence raises a
genuine issue of fact as to whether it discriminated against the (complainant],” and has noted
that, “[t]o accomplish this, the [agency] must clearly set forth, through the introduction of
admissible evidence, the reasons for the [complainant’s] rejection.”
, 450 U.S. at 253
Id. Moreover,
the agency must “frame the factual issue with sufficient clarity so that the [complainant] will
have a full and fair opportunity to demonstrate pretext.”
at 254-55.
Id. Although the agency’s
burden of production is not onerous, it must nevertheless provide a specific, clear, and
individualized explanation for the treatment accorded a complainant.
at 255-56.
See Complainant v. Dep’t
of Def., EEOC Request No. 05950931 (Nov. 6, 1997) (finding race discrimination where the
agency’s conclusory statement that complainant did not have the required skills for a position
did not adequately explain why complainant was not selected for the position); Complainant v.
U.S. Postal Serv.

, EEOC Appeal No. 01A31036 (Mar. 18, 2004) (agency statement that
selectee was “better suited for the position” was “so generalized, conclusory and vaporous as
to offer no substantive explanation of the agency’s action”).
In the instant case, we find that the Agency failed to articulate a legitimate, nondiscriminatory
reason for its action. The record contains no affidavit from Complainant’s supervisor, S1,
explaining why he assigned Complainant to the special project and replaced Complainant with
E1. The record indicates that S1 resigned from the Agency. We find the record contains no
evidence from any appropriate Agency official articulating the Agency’s reasons for the
reassignments. Without the appropriate affidavit or other evidentiary documents clearly
indicating the specific reasons why Complainant was reassigned, there is no legitimate,
nondiscriminatory reason that has been set forth which Complainant can rebut. Even if we
were to accept as valid evidence that the Agency asserted that Complainant was reassigned for
the needs of the Agency (because the duties were somehow more important), such a reason,
without any further explanation is simply too generalized and vague for Complainant to rebut
and therefore do not constitute a sufficient legitimate, nondiscriminatory reason.

There is evidence, however, that the reassignment was made for unlawful discriminatory
motives. Affidavits from three of Complainant’s coworkers state that Complainant’s
reassignment to New Orleans appeared to be a demotion motivated by Complainant’s race and
one affidavit thought the Agency action was motivated by sex discrimination. In light of the
Agency’s failure to provide a sufficient articulation of the reasons for changing Complainant’s
duties and job title and moving him to another work site, as described in Complainant’s
complaint, the Commission finds that the Agency failed to overcome Complainant’s prima
facie cases of race and sex discrimination. Accordingly, we find that the Agency discriminated
against Complainant on the bases of race and sex as alleged.

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CONCLUSION
Based on a thorough review of the record, we REVERSE the Agency’s Final Decision finding
no discrimination and we REMAND the complaint 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 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
restore Complainant to the position, title, and duties to which he was previously
assigned on January 7, 2007, the day before the effective date of the discriminatory
events described in the instant complaint. The Commission notes that during the
pendency of the instant appeal, Complainant was removed from federal service and that
Complainant is challenging that removal. If Complainant has not returned to federal
service, the Agency’s obligation to restore Complainant’s prior title, position, and
duties is excused.

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).

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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 Baton Rouge Field Office and New Orleans Field Office
facility 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.

ATTORNEY’S FEES

(H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she 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
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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
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
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. 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 filed your
appeal with the Commission. 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
(R0610)
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local office, facility or department in which you work. 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
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
January 15, 2015