Jarrett C.,1 Complainant,v.Jeffrey Gerrish, Chairman and President, Export-Import Bank of the United States, Agency.

Equal Employment Opportunity Commission

Apr 18, 2019

0120170213 (E.E.O.C. Apr. 18, 2019)

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

Jarrett C.,1
Complainant,

v.

Jeffrey Gerrish,
Chairman and President,
Export-Import Bank of the United States,
Agency.

Appeal No. 0120170213

Hearing No. 570-2014-01051X

Agency No. EODP-13-01

DECISION

On October 24, 2016, 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
September 16, 2016, 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.2 For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether the Agency discriminated against Complainant based on his sex when it denied his
request for a lateral transfer, without a change to his grade, job description or job title.

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 attorney received the Agency’s final decision on September 26, 2016. Therefore,
the appeal is timely filed.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Public Affairs
Specialist/Vice-President (GS-15), at the Agency’s Office of Communications in Washington,
D.C.

In July 2011, Complainant married his wife, who resided in New York City. Complainant asked
his then-supervisor for a transfer to New York City, but she was unable to secure approval for his
transfer prior to leaving the Agency. In October 2011, Complainant began to work on Fridays from
the New York regional office. In September 2012, Complainant met his new supervisor, Senior
Vice-President for Communications (SVP1) (male) and informed him that he wished to work in
New York City. SVP1 informed Complainant that the Agency President (AP) (male) would
ultimately make that decision. ROI at pgs. 34, 36.

On April 16, 2013, Complainant sent SVP1 a business justification for his transfer to New York,
per his request. ROI at pg. 35. On July 29, 2013, Complainant met with SVP1 and the Senior Vice-
President for Resource Management and Administration (SVP2) (male) to discuss his request.
SVP2 stated that the Executive Working Group (EWG) would develop an updated telework policy
prior to a change of duty station for any employee. ROI at pg. 37.

On August 5, 2013, an Agency-wide email was sent announcing that the Deputy Vice-President,
Structured and Project Finance (DVP) (female) was transferring to the New York City regional
office. ROI at pg. 59. Complainant sent an email to AP expressing his frustration that he had been
denied a transfer to New York City, while DVP’s transfer was approved. ROI at pg. 77.

On August 20, 2013, Complainant met with SVP1, who offered Complainant a position as a GS-
14, step 10, in New York City. When Complainant noted that DVP transferred to New York City
without a cut in pay, SVP1 responded that unlike Complainant, DVP was not a supervisor.
Complainant responded that he was not a supervisor and had not been performing supervisory
functions for his team, such as performance evaluations, assigning work, or approving leave
requests. ROI at pg. 42-44.

In October 2013, the EWG issued an updated telework policy. The policy stated that supervisors
were not eligible for “distance” telework, and SVP1 did not approve Complainant’s request to
telework from New York City. ROI at pg. 94.

On September 12, 2013, Complainant initiated EEO counseling, and in an attempt to reach a
resolution, the Agency and Complainant’s counsel reached “an agreement in principle” in
December 2013. Complainant terminated his lease on his apartment and sold his furniture.
However, Complainant then learned that no agreement was in place, and that he would need to
take the GS-14 position and wait until April to relocate to New York. ROI at pgs. 39-40.

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On January 16, 2014, Complainant attended a meeting to discuss his “forced retirement.” AP
informed Complainant that since he was a supervisor, he was needed in Washington D.C., while
DVP was not a supervisor. ROI at pg. 41. Complainant retired on February 1, 2014. ROI at pg. 45.

On February 6, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of sex (male) when:

1. it denied his request for a lateral reassignment to New York City, without a change
to his grade, job description or job title; and

2. he felt forced to retire when it denied his lateral reassignment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing, but subsequently withdrew his request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

The Agency found that Complainant had not provided sufficient evidence to show that DVP was
similarly situated to Complainant. However, it also found that management officials articulated
legitimate, nondiscriminatory reasons for its action. DVP was approved for distance telework
because she had no supervisory responsibilities, while Complainant’s position had supervisory
responsibilities.

The Agency then found that Complainant had not shown that the reasons were pretext for
discrimination. While Complainant argued that SVP1 assumed some of his supervisory functions
such as approving leave, he had not shown evidence contesting SVP2’s claim that Complainant
continued to perform other supervisory functions, such as rating the staff members’ performance
and providing direction to them. The Agency also determined that Complainant did not present
any evidence showing that the Agency’s telework policy precluded supervisors from participating
in the telework program. The Agency concluded that Complainant had not shown that the Agency
discriminated against him based on his sex when it denied his request to telework from New York
City, while retaining his position as a GS-15 Vice-President of Communications.

Complainant filed the instant appeal and submitted a brief in support of his appeal on November
3, 2016. The Agency filed a response on November 22, 2016.

CONTENTIONS ON APPEAL

Regarding claim 1, Complainant argues that he demonstrated a prima facie case of sex
discrimination because the Agency held Complainant to a different standard while “flouting” its
telework policy for DVP.
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Complainant also alleges that the Agency’s articulated reason is pretext for discrimination because
he never served in a supervisory position, except for a short period of time. Additionally,
Complainant argues that the Agency’s new telework policy did not go into effect until October
2013, which was after the decisions were made for both DVP and Complainant.

The Agency argues that Complainant has not established a prima facie case of discrimination based
on sex. The Agency states that the record established that DVP is not a true comparator because
she was not a supervisor and had different duties in a different division. The Agency also argues
that Complainant confuses long-distance telework with a duty station transfer, and that DVP
received a duty station transfer, and was not teleworking from New York City.

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”).

EEOC Jurisdiction

As an initial matter, we note that in its final decision, the Agency only gave Complainant rights to
appeal its final decision with the Merit Systems Protection Board (MSPB), and not with the
Commission. Complainant filed his appeal directly with the Commission, stating that the MSPB
does not have jurisdiction over claim 1, which he states is within the jurisdiction of the
Commission. As the complaint involved both mixed (pursuant to 29 C.F.R. § 1614.302) and non-
mixed issues, Complainant should have been provided with appeal rights to the MSPB on the
constructive retirement claim (claim 2), as well as appeal rights to this Commission for claim 1.

While we note that Complainant was not provided rights to file his appeal with the Commission,
we find this is a harmless error because the Commission has long ago abandoned the doctrine of
claims being “inextricably intertwined” because the MSPB generally does not have jurisdiction
over non-MSPB appealable matters, even if they are related to MSPB appealable matters. See
Complainant v. Dep't of Health and Human Services, EEOC Appeal No. 0120130459 (Aug. 28,
2014); and Complainant v. Inter-American Foundation, EEOC Appeal No. 0120132968 (Jan. 8,
2014) (wherein the Commission essentially overturned the doctrine of inextricably intertwined).
Accordingly, we find that Complainant’s appeal of claim 1 is properly before the Commission,
and we will address it in this decision.

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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 Complainant to prevail, he 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
Complainant 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
Complainant 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, Complainant retains the burden of
persuasion, and it is his 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).

Complainant may establish a prima facie case of sex discrimination by providing evidence that (1)
he is a member of a protected class; (2) he suffered an adverse employment action; and (3) either
that similarly situated individuals outside his protected class were treated differently, or other
circumstances surrounding the adverse employment action give rise to an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Reeves v. Sanderson Plumbing, 530 U.S.
133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir. 2004) (internal quotation
marks omitted).

In this case, Complainant argues that DVP was a similarly situated employee, outside of his
protected category, and was treated more favorably when she was approved to transfer to New
York City. However, we find that she is not an appropriate comparator because she is not similarly
situated and does not meet the well-established criteria that all relevant aspects of the comparative
employee’s work situation must be identical or nearly identical, i.e., that the employees report to
the same supervisor, perform the same job function, and work during the same time periods. See
Cantu v. Dep't of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006) citing Anderson
v. Dep't of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003). The record shows that DVP
works as a Loan Specialist, with a different supervisor in a different division. Additionally, DVP
does not supervise any employees. ROI at pgs. 142-146. Accordingly, we find that Complainant
has not established a prima facie case of sex discrimination because DVP is not a similarly situated
comparator.

Assuming, arguendo, that Complainant had established a prima facie case of sex discrimination,
we find that the Agency proffered legitimate, nondiscriminatory reasons for its action.

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Management officials stated that it denied Complainant’s request because his position is
supervisory, while DVP’s position is not supervisory. For example, SVP1 stated that Complainant
conducted performance appraisals in FY2012; disciplined staff members for being late; and
resolved conflicts. ROI at pg. 96.

We further find that Complainant has not established pretext for the Agency’s reasons.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. In this case,
Complainant argues that he only performed supervisory duties on occasion, and that his position
is not supervisory. However, we find that all the managers’ claims that Complainant’s position is
supervisory are consistent, and Complainant has not shown that they are otherwise not believable.
Additionally, the record shows that his position is classified as supervisory, in contrast to DVP’s
position. ROI at pgs. 154, 157. Accordingly, we find that Complainant has not shown that the
Agency’s proffered reason is pretext for discrimination.

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 final decision finding that Complainant
has not shown that the Agency discriminated against him based on his sex when it denied his
request for a lateral transfer, without a change to his grade, job description or job title.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission.
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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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

April 18, 2019
Date