[Redacted], Stefan C., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Mar 24, 2022

Appeal No. 2021000158 (E.E.O.C. Mar. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stefan C.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021000158 Agency No. DOS-0444-19 DECISION On September 22, 2020, 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 August 24, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND During the relevant time, Complainant worked as a Regional Financial Specialist at the Agency’s Consulate General in Frankfurt, Germany. Complainant began his employment with the Agency in June 2005, when he was 45 years old Record of Investigation (ROI) 1 at 218. He acknowledged receipt of the employment handbook, in writing, on the June 13, 2005. ROI 1 at 218. Complainant stated that, from the beginning of his employment, all of the documents associated with his employment stated that, if an employee’s age is 45 years or older on their date of hire, the employee is not eligible for the Defined Benefit Plan (ERGO) retirement plan. ROI 1 at 51; ROI 4 at 2. 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. 2021000158 2 Complainant said that he met with Human Resource Assistant from Berlin (HR Assistant) at least once between 2010 and 2012 and that HR Assistant provided documentation supporting exclusion due to age pursuant to German law. ROI 1 at 48. Complainant asserted that he disagreed with this issue numerous times but had no success in being included in the ERGO program. ROI 1 at 50. Supervisory HR Assistant stated that the Agency closed the ERGO retirement program for all new employees hired after January 25, 2015. ROI 2 at 4. Effective March 31, 2019, employees who were hired after January 25, 2015, or were excluded from participation in ERGO, were allowed to participate in a Direct Contribution Retirement Plan (DC Plan). ROI 1 at 54, 113, 115; ROI 2 at 2. Employees who already participated in ERGO were grandfathered in. ROI 1 at 114. The Agency notified Complainant that he would be automatically enrolled in the DC Plan unless he specifically opted out; Complainant did not opt out of the DC Plan. Complainant was aware that there would be no retroactive payments. ROI 1 at 54; ROI 4 at 2, 203. Senior HR Officer stated that no employees received retroactive payment under the DC Plan. ROI 4 at 5. Supervisory HR Assistant stated that there was no legal mechanism to award retroactive payment; Senior HR Officer specified that the DC Plan was not implemented with retroactive pay and it was not discussed in the drafting of the plan. ROI 2 at 119-20; ROI 4 at 5. Complainant stated that he should have retroactive payments because his exclusion from ERGO was discriminatory, based upon age. ROI 1 at 54. Complainant provided the identity of a co-worker (CW), who began his employment the same day as Complainant. CW1 was under the age of 45 at the time of hire and was allowed to participate in the ERGO retirement plan. ROI 1 at 51. Complainant did not identify any employee who received retroactive pay under the DC Plan. Senior HR Assistant stated that no employee received retroactive pay. ROI 2 at 121. Complainant stated that on July 17, 2019, he received a printout of his estimated retirement payout beginning at the age of 67. ROI 1 at 3. He charged that including him in the DC retirement system, without retroactivity, did not remedy his exclusion from the ERGO system. ROI 1 at 3. He stated that he should always have been eligible to participate in the ERGO system and that he should be made whole. ROI 1 at 3. On July 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (59) when, on May 17, 2019, he was denied retroactive payment into his retirement plan for his prior 14 years of service. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2021000158 3 CONTENTIONS ON APPEAL Complainant contends that he was excluded from participating in the ERGO plan due to discriminatory animus. He points to CW, who has the same job title and grade, who was allowed to enroll in ERGO after the five-year vesting period. Complainant notes that the only difference in CW and himself are their ages. 2 The Agency argues that Complainant has not established a prima facie case for age discrimination. 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 Chap. 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). 2 We note that to the extent Complainant argued that the ERGO retirement plan was discriminatory, any events related to the implementation of the ERGO retirement plan are 14 years old, are not enumerated claims, and are not before the Commission. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, the implementation of the ERGO retirement plan will not be addressed in this decision. 2021000158 4 Assuming, arguendo, that Complainant meets the prima facie case for age discrimination, we now turn to the Agency to articulate a legitimate, non-discriminatory reason for its actions. We find that it has done so here. The DC Plan did not begin until March 31, 2019. Senior HR Officer specified that the DC Plan was not implemented with retroactive pay; retroactive pay was never discussed in the drafting of DC Plan. As such, there was no legal mechanism by which the Agency could award Complainant retroactive benefits. We now turn to Complainant to establish that the Agency’s reason constituted pretext for discrimination, which he has not done. Complainant, himself, acknowledged that he was aware that no retroactive payments would be made under the DC Plan. Senior HR Officer confirmed that no employees received retroactive payment under the DC Plan. As there is no one that Complainant can point to who was treated differently under the DC Plan, and there is no evidence that the Agency negotiated or implemented the DC Plan with discriminatory purposes, the Commission cannot find that the Agency acted with discriminatory animus when Complainant was not provided retroactive benefits under the DC retirement plan. 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 no discrimination. 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 2021000158 5 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. 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. 2021000158 6 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 24, 2022 Date