0120131018
05-28-2015
Complainant, v. Brian Deese, Acting Director, Executive Office of the President (Office of Management and Budget), Agency.
Complainant,
v.
Brian Deese,
Acting Director,
Executive Office of the President
(Office of Management and Budget),
Agency.
Appeal No. 0120131018
Agency No. OMB-10-01
DECISION
On January 11, 2013, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 23, 2012, 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.1 The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Agency employee and a rejected applicant for the management position of Budget Officer with the Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
On January 15, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on based on his race (African-American) and reprisal for prior protected EEO activity under Title VII when he learned in October 2009, that he was given negative references made up of false and derogatory remarks by former subordinates 1 and 2 (Agency employees), a former co-worker 1 (an Agency employee), and his former supervisor (retired from the Agency in 2005) to an ATF background investigator, resulting in the ATF rescinding its tentative offer to hire him.
Complainant, a former employee of the Agency, applied for the management position of Budget Officer with the ATF. By letter in April in 2009, ATF tentatively offered Complainant the position of Budget Officer, subject in part to a background investigation. The ATF's Human Resources Office then referred Complainant for a background investigation to ATF's Office of Professional Responsibility and Security Operations. From May 28, 2009 to June 4, 2009, an ATF investigator with its Office of Personnel Security conducted the investigation, which resulted in very negative information on Complainant. Thereafter, in August 2009, ATF rejected hiring Complainant.
Complainant submitted a Freedom of Information Act (FOIA) request to ATF, and received a copy of the ATF background investigation in October 2009, which contained very negative reports about him made by two former Agency subordinates, a former Agency co-worker, and his former Agency supervisor. These reports mostly or completely regarded Complainant's tenure as Chief of the Education Branch - from September 1997 to September 2000.
According to the background report, the above people variously reported that Complainant had difficulty managing his staff, would set different standards for different people, morale in his branch was poor, subordinates requested to be transferred out of his branch, some female subordinates were uncomfortable with comments he made such as how women looked and saying he went to Hooters, women complained to management and one to the General Counsel, he had a temper which resulted in him not always acting appropriately, and he would send emails with expletives. Two of the above individuals indicated that they would not recommend Complainant for employment.
The EEO investigator interviewed all four people who spoke with the ATF background investigator. They all indicated that they believed what they told the ATF background investigator. Further, much of what they said was corroborated by the statements of three other subordinates of Complainant who gave specific examples, and a contemporaneous running log by Complainant's former supervisor.
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). 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).
In its FAD, the Agency assumed Complainant established prima facie cases of race and reprisal discrimination. It found that it articulated a legitimate non-discriminatory reason for what the four people said to the ATF background investigator - they believed what they said was true, and their beliefs were corroborated by other evidence. The Agency found that Complainant failed to show pretext. Accordingly, the Agency found no discrimination.
On appeal the parties make no comment.
ANALYSIS AND FINDINGS
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). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
For the reasons found in the FAD, we find that the Agency articulated legitimate, non-discriminatory reasons for what the four individuals said to the ATF background investigator. Complainant has failed to show pretext or otherwise prove discrimination.
Accordingly, the FAD is AFFIRMED.
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 (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 (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
May 28, 2015
__________________
Date
1 The Agency first sent the FAD to Complainant by certified mail. It was returned to the Agency as having an "insufficient address." Thereafter, the Agency emailed the FAD to Complainant on December 12, 2012.
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0120131018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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