Cory C.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Oct 5, 2020

2020001376 (E.E.O.C. Oct. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cory C.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2020001376 Agency No. DEA-2019-00140 DECISION 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 November 5, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant was an applicant for a Diversion Investigator, GS-11, position at the Agency’s Drug Enforcement Agency in Chicago, Illinois. On January 28, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on age (born 1961) when, on July 30, 2018, Complainant learned that Agency management had rescinded his conditional offer of employment for the position of Diversion Investigator. After its investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment 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. 2020001376 2 Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). There is no indication as to whether Complainant responded to the Agency’s notice. On November 5, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record supports that the Agency articulated legitimate, non-discriminatory reasons for rescinding Complainant’s tentative job offer. Complainant acknowledged that he received a tentative job offer contingent upon completion of a background check for a security clearance. Complainant asserted that he passed all the tests including the interview, the physical examination, and he indicated that he had an “incredible educational background.” However, one interview panel member (“PM1”) indicated that there were some discrepancies regarding what Complainant disclosed during his interview which were inconsistent with the information revealed during his background investigation. Specifically, PM1 indicated that Complainant stated during his interview that he was a School Psychologist. 2020001376 3 However, the background investigation revealed that while Complainant had completed some course work in this field, he had not obtained a degree in psychology. PM1 further indicated that Complainant had explained that he resigned from a prior position due to “personal reasons.” However, the background investigation revealed that Complainant was recommended for dismissal in July 2016,2 due to “gross negligence of directing custodial staff to remove asbestos floor tile(s).” Based on these discrepancies, PM1 stated that she and the other two panel members (“PM2” and “PM3”) decided not to recommend Complainant for hire. PM2 and PM3’s testimonies also corroborated PM1’s explanation for the rescinded offer and all three panel members denied that Complainant’s age was a factor in this decision. The Human Resources Suitability Section Chief (“HRSSC”) was responsible for issuing the non- selection letter to Complainant. The HRSSC stated that he had no involvement in the panel’s decision not to select Complainant, other than to serve as a technical advisor to assure that all hiring rules and laws were followed. The HRSSC further stated that Complainant received a non-selection letter based on a determination that there were better candidates than Complainant for the position. Consequently, the HRSSC explained that Complainant’s non-selection was not a suitability or security determination and Complainant was free to apply for other federal positions. However, the Diversion Staffing Chief explained that Complainant was provided a tentative job offer but the hiring panel disapproved Complainant’s section due to issues that were discovered during Complainant’s background investigation. Nevertheless, both the HRSSC and the Diversion Staffing Chief denied that Complainant’s age was a factor in the panel’s decision. We note that Complainant asserted that his former position as a Psychologist did not require that he have a psychology degree. Complainant also asserted that his former position only required that he complete course work in an accredited school of psychology. We further note that a copy of Complainant’s transcript indicates that he had completed course work in the school of psychology. However, he had not been conferred a degree in psychology. A copy of a July 14, 2006 letter from Complainant’s former employer indicates that Complainant was recommended for termination of his employment due to his gross negligence in directing staff to remove asbestos laden tile flooring. Subsequently, Complainant signed a July 24, 2006 resignation from his position. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s age. 2 We note that the record indicates that Complainant’s termination from the former position at issue was recommended in July 2006, not July 2016. However, there is no indication that PM1 made this clerical error based on Complainant’s age. 2020001376 4 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 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 athttps://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, 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. 2020001376 5 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. 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 October 5, 2020 Date