Complainant,v.Thomas E. Perez, Secretary, Department of Labor (Employment Standards Administration), Agency.

Equal Employment Opportunity CommissionAug 8, 2014
0120122722 (E.E.O.C. Aug. 8, 2014)

0120122722

08-08-2014

Complainant, v. Thomas E. Perez, Secretary, Department of Labor (Employment Standards Administration), Agency.


Complainant,

v.

Thomas E. Perez,

Secretary,

Department of Labor

(Employment Standards Administration),

Agency.

Appeal No. 0120122722

Agency No. CRC 11-02-134

DECISION

Complainant filed an appeal from the Agency's June 6, 2012 final decision concerning her 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. 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 worked as a Criminal Investigator at the Agency's Office of Labor Management (OLMS), at the New Jersey Resident Investigator Office in Iselin, New Jersey.

On September 19, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (49) when, in August 2011, she was notified that due to the closing of the New Jersey work site, she was reassigned to the New York District Office in New York, New York.

The record discloses the following pertinent information.

Complainant was 49 years old when she was notified that the Agency was closing. Complainant reported to the Northeast Regional Director (S1) and the District Director (S2) (now retired). Both are named as the responsible management officials.

The record shows that the New Jersey office was part of the New York District Office. S1 stated that he made the decision to close the New Jersey office with the approval of the OLMS National Office (Tab B). Management made the decision after it was advised that the lease for the Iselin Office was coming up for renewal in August 2011. S1 stated that Complainant was advised that she could elect to be reassigned to the Philadelphia District Office (PDO) which was closer to her home. Complainant declined. S1 stated that he negotiated with the union, which acknowledged that the Agency had the right to close the office and reassign the investigators. Complainant was one of three senior level employees who were impacted by the office closing.

Prior to the closing, Complainant had discussion with S2 with respect to the negative impact the closure would have on her, the other investigators, and the public. She had turned down promotional opportunities that would have required a relocation. She advised that she did not feel she could handle commuting to the New York District Office on a more regular basis.

Complainant teleworked for the past sixteen years. She states that, nevertheless, she suffered harm as a result of her reassignment, as it imposed additional commuting requirements. In addition, she averred that she now has to pay New York State taxes and pay for her commute to New York on occasion.

Complainant averred that the Agency did not adequately consider the impact on the most senior investigators. Three New Jersey investigators over age 40 were impacted. Two were eligible for retirement (CW2 and CW3) and Complainant was close to retirement eligibility. One of the employees subsequently retired. Complainant asserts that the Agency closed the office to force them out of their positions. She also asserts that it was "curious" that this all took place around the time the Department began offering incentive packages to retirement-eligible employees. Complainant asserts that only one office has been closed since the closure of the New Jersey office and the two younger less senior investigators were assigned a remote office site - which Complainant asserts resulted in more favorable treatment.

The Agency's stated reason was the "mission, budget and organization." S1 testified that Complainant's allegation that the Agency was pressuring investigators to resign or retire is false and that the Agency closed the office due to its tight budget.

Complainant stated that around the time of closing of the New Jersey office, S2 commented to her that the Agency had accommodated her and her colleagues in the past. Complainant stated "Why else, would the Agency say that other than to suggest that it was not willing to be accommodating at this point?"

The record includes affidavits from management who state that the Texas closure was different in that Houston was 348 miles from its home office in New Orleans, whereas the New Jersey office was less than 30 miles from its home office.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her 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).

Agency Decision

The Agency assumed for purposes of its analysis that "Complainant made a prima facie case of age with respect to her allegation." The decision concluded that the Agency articulated a legitimate, nondiscriminatory reason for the closure (decision was based on budgetary concerns). The Agency concluded that Complainant failed to provide evidence of a discriminatory motive or show that management's explanation for her transfer was not credible. This appeal followed.

ANALYSIS

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. (November 9, 1999) (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").

Section 633(a) of the Age Act applies to the federal sector. The law requires that federal agencies make all personnel actions free of discrimination. See 29 U.S.C. � 633(a) (all personnel actions in federal employment "shall be made free from any discrimination based on age"). The law prohibits discrimination on the basis of age against individuals 40 years and older.

We analyze this as a disparate treatment claim. To prevail in a disparate treatment claim such as this, Complainant must establish a prima facie case by demonstrating that she 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).

We find that the Agency articulated a legitimate, nondiscriminatory reason for the reassignment of Complainant's duty station from Iselin, New Jersey to the New York office. In this case, the deciding official (supervisor) averred that management decided not to renew its lease on the Iselin office and to close that office for budgetary and mission reasons. Complainant does not dispute that the Agency has the authority to decide on whether to keep an office open. Complainant was given the option to continue to telework, as she has done for the past 16 years. The gist of her claim is that the Agency should have done more to accommodate the older workers who were being relocated and its failure was evidence of age animus. Complainant maintains that the Agency made accommodations for younger employees at other offices and had helped her in the past when she was younger. However, the record shows that the circumstances were different with the other offices in that their new assignments were more than 350 miles away. The New York office was only 30 miles away.

We find that the record supports the Agency's conclusion. Complainant did not provide evidence to show that the Agency's reasons were a pretext for discrimination. Beyond her bare assertion that this was an effort to force the older workers out, Complainant has provided no evidence to support her claim of age discrimination.

We find that the preponderance of the evidence supports the Agency's decision.

CONCLUSION

Accordingly, we AFFIRM the Agency's Final Decision.

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 tends 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

August 8, 2014

__________________

Date

2

0120122722

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2 0120122722