[Redacted], Domingo M., 1 Complainant,v.Monty Wilkinson, Acting Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2021000527 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Domingo M.,1 Complainant, v. Monty Wilkinson, Acting Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency. Appeal No. 2021000527 Agency No. FBI-2019-00312 DECISION On October 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 6, 2020 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 On November 4, 2019, Complainant, a former Supervisory Special Agent (SSA) at the Agency’s Transnational Organized Crime Global Section (TOCGS) in Washington D.C., filed a formal complaint alleging that the Agency discriminated against him based on age (over 40) when, on July 5, 2019, he learned that the FBI management had reassigned him to the Organized Crime Drug Enforcement Task, Force Trask Force Fusion Center (OFC) for the remainder of his career. After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on October 6, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. 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. 2021000527 2 ANAYLSIS 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). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. On March 16, 1997, Complainant entered on duty as a Special Agent (SA) and served as a Supervisory Special Agent (SSA) until he voluntarily retired on September 28, 2019. At that time, Complainant was based at FBI Headquarters. Complainant served as a Program Manager for the Assistant Legal Attache and Border Liaison Office (BLO) Programs in the Transactional Organized Crime (TOC)-West Strategy (formerly Coordination) Unit (TWCU), Transnational Organized Crime Global Section (TOCGS), Criminal Investigation Division (CID). In his capacity as the Program Manager for the BLO Program, Complainant reported to the TOC-W Unit Chief (UC). His UC reported to the Assistant Section Chief (ASC). In or around June 2019, Complainant verbally informed the ASC of his intention to retire at the end of September 2019. Around the same period, UC informed the ASC that Complainant was scrutinizing the payment vouchers submitted by a BLO in the Phoenix Field Office. The vouchers were for the BLO’s meals associated with debriefings he held with Confidential Human Sources (CHS). Complainant’s scrutiny of these vouchers was outside the scope of his official duties as Program Manager and the ASC therefore instructed UC to tell Complainant to “stand down” and take no further action related to the vouchers. 2021000527 3 The ASC (over 40) stated that UC informed him that Complainant was still corresponding with other FBI employees in the field regarding the BLO “to include a division’s CDC, and he was not ceasing his actions or involvement in this matter as requested by his supervisor and myself. As a note, this was shortly after [Complainant] had notified me that he had submitted his paperwork for retirement.” Another SSA, also the Unit Chief (UC), also reported directly to the ASC. He served as the UC of the Organized Crime Drug Enforcement Task Force (OCDETF) Fusion Center (OFC) and was assigned to the Richmond Field Office. He was responsible supervising 28 employees including 6 SSAs who were Desk Officers (DO). In or around early July 2019, the ASC contacted SSA because he knew the OFC was understaffed. Specifically, ASC asked SSA if he could use a Program Manager on a short-term basis at the OFC. He explained that if he reassigned Complainant on a Temporary Duty (TDY) assignment, it could help bridge the staffing shortage until UC’s vacancies were filled. SSA stated that his unit could meet its mission in the interim if Complainant were reassigned to the OFC. Thereafter, the ASC brief the TOCGS Section Chief on his decision and she concurred with the decision. According to the SSA, he stated that in or around early July 2019, he was contacted by the ASC. The SSA stated that ASC explained that based on a reorganization in CID, he was looking for an assignment for [Complainant] during his final weeks in the FBI before Complainant retired. The SSA stated that “[ASC] asked me if I could use [Complainant] at the OFC. I recall I was down one or two SSAs at the time. While a short-term DO was not an ideal solution, I agreed to [Complainant’s] reassignment to OFC. [ASC] never mentioned to me that [Complainant’s] age was a reason for reassigning him.” The record reflects that prior to July 5, 2019, Complainant submitted a Travel Request Initiative and Payment (TRIP) voucher to the ASC for approval. The voucher was for travel to the Cincinnati Field Office and was associated with Complainant’s duties as Program Manager for the BLO Program. The ASC responded to Complainant’s request for approval by asking “Aren’t you retiring?” Complainant responded “It’s not a bad thing to get out of the office for a couple of weeks” in which ASC answered “Fair enough.” On July 5, 2019, during a meeting with the ASC and SSA, Unit Chief of the OFC, Complainant was informed that he would be reassigned to the OFC for the remainder of his career. On July 8, 2019, during another meeting with ASC, Complainant stated that the reassignment felt punitive and that he was being punished for some action which Complainant had taken. ASC asserted, however, that Complainant was not being punished and that there was an overload of work at the OFC. On August 8, 2019, SSA emailed UC and ASC regarding Complainant and his attitude and interactions with other employees at OFC. According to the SSA, Complainant “had told a co- worker that because FBIHQ was not funding his Metro subsidy, he would not be going to work nor taking leave because he had not asked to be [at the OFC]. 2021000527 4 SSA further stated that Complainant’s “entitlement attitude is off the charts, and he doesn’t have the judgment, or doesn’t care, if he is unreasonable or insubordinate communicating his discontent…I’m not going to let him jeopardize interagency relationships here, or cause a reduction in morale to FBI support staff because he keeps running his mouth.” The TOCGS Section Chief (over 40) stated that from April 2018 to August 2019, she was the Section Chief of TOCGS Section. She stated that she did not consider Complainant’s age when she made the decision to reassign him to the OFC. The Section Chief further stated that she explained that Complainant “did not communicate well with his supervisors, and he was not a team player. He was negative about a specific BLO in a field office, and was resistant to try find an approved policy exception to help the BLO be productive. As a result, instead of trying to identify a solution to report the non-compliance and find a way to seek a policy exception, he maintained a posture of counterproductive management.” Further, the Section Chief stated that on one occasion, Complainant failed to address an issue with his chain of command before he took directly to the Executive Staff of the CID Assistant Director. She stated that as the Section Chief, she should have been informed of his matter before he raised it with the AD’s staff and “I was very unhappy with this action and considered his behavior to be unprofessional.” With respect to Complainant’s allegation that he ran into the Section Chief at a restaurant and asked her why he had been reassigned to the OFC, the Section Chief acknowledged seeing Complainant in a restaurant. She stated that she explained there was an overload of work at the OFC and she thought his attitude was terrible and a number of issues had demonstrated his lack of communication. Moreover, the Section Chief stated that as she was leaving CID, she told Complainant that if he committed to being better, she “would consider making a call on his behalf to recommend a change in his current assignment to OFC.” On September 9, 2019, more than one month after his reassignment to the OFC, Complainant emailed Assistant United States Attorney (AUSA) requesting further information from the BLO Program because he believed the proposed changes to the program would be contradictory to its original purpose and would “put the BLOs at risk while doing their job of building liaison relationships with foreign and domestic law enforcement officials and organizations.” On September 16, 2019, SSA emailed Complainant instructing him to “cease and desist from requesting information regarding the BLO Program. You are no longer part of the Unit in charge managing the BLOs and you have not been assigned any tasks related to the BLOs. Complainant, however, emailed AUSA again on September 18, 2019, to forward UC’s prior message and said “FYI. This is an issue with many implications.” Based on Complainant’s unprofessional conduct, participation at work, and his imminent retirement from Agency employment, Agency management decided to reassign Complainant to the OFC because they needed his assistance. The evidence simply does not support a finding that Complainant’s age was a factor in his reassignment. 2021000527 5 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 (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. 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. 2021000527 6 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 March 2, 2021 Date