01990453
04-04-2002
John Macready, Complainant, v. John Ashcroft, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
John Macready v. Department of Justice
01990453
April 4, 2002
.
John Macready,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 01990453
Agency No. D963349
DECISION
John J. Macready (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaint of unlawful 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases of
sex (male) and age (52 at relevant time) and subjected to retaliation
for prior EEO activity (filed formal complaint alleging race and age
discrimination) when:
he was removed from the position as Chief of Investigative Services
(CIS) in late 1994 or early 1995, after his workload had been unfairly
increased, and transferred to the Southwest Border Program;
(2) he was removed from the position of Chief of the Southwest Border
Program (CSPB) in June 1995;
(3) he was transferred from Drug Enforcement Administration (DEA)
Headquarters to the Chicago Field Division as an Assistant Special
Agent-in-charge (ASAC) in June 1995;
he was not officially advised of his transfer to the Chicago Field
office; and
(5) he was denied an extension on the transfer.
For the following reasons, the agency's final decision is AFFIRMED,
in part, and REVERSED, in part.
The record reveals that during the relevant time, complainant was employed
in various positions, including Chief of Investigative Services and Chief
of the Southwest Border Program at the agency's headquarters in Arlington,
Virginia and, later, an ASAC at the agency's Chicago Field Office.<1>
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on November
15, 1995. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or, alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency first addressed complainant's claim of retaliation.
The agency determined that management officials articulated legitimate
non-discriminatory reasons for its actions which complainant failed
to establish were a pretext for retaliation. In regard to Issue 1,
complainant's first-line supervisor at the time (S1) testified that
complainant's workload was not increased beyond the workload of any
other agent. S1 noted that complainant was given responsibility for
the �marijuana desk,� but that this move was most likely motivated by
the fact that S1 was previously responsible for the desk and the agency
wanted to keep it under his authority. S1 noted that despite being
given this responsibility, complainant's workload was no bigger than
that of any other agent and that entire office was inundated with work.
The agency then noted that even assuming that those responsible for
complainant's reassignment to the Southwest Border Program were aware
of complainant's prior EEO activity, there was no evidence to suggest
that the move was motivated by that activity. The agency noted that the
move was a lateral transfer and was based on the fact that the Southwest
Border Program was a new program in need of an experienced senior agent
to get it off the ground.
Turning to Issues 2 and 3, the agency concluded that complainant was
transferred from the CSPB position to the ASAC position in Chicago
as a routine matter. Members of the Career Board which authorized
the transfer testified that all agents were routinely rotated from
Headquarters to Field Offices and that complainant was due for such
a rotation. Complainant's first-line supervisor during his time at SBP
(S2) testified that although complainant was a good agent, he was not
one of the best and that when it came time to reorganize, he felt that
a �hard charger� would be a better Chief for SBP. S2 noted that he
discussed his opinion with the Chief of Operations, who agreed that a
lateral transfer to a different position would be appropriate.
In regard to Issue 4, the agency noted that even assuming complainant
was not informed of his transfer through the normal channels, there
is no evidence that this failure was motivated by retaliatory animus.
The agency also concluded that complainant was not materially harmed by
this incident and could not establish retaliation.
The agency then found that complainant failed to establish that the
denial of his request to postpone the transfer until his son graduated
from high school was motivated by complainant's prior EEO activity.
Agency officials testified that while it was DEA's unwritten policy to
allow agents to postpone transfers if it would result in transferring
a child from school in the child's last year of high school, this
only applied when the transfer occurred during the school year.
Officials noted that complainant's transfer orders came in June 1995,
well before his son began his senior year, unlike the transfer orders
for the comparative employees complainant named. Officials also noted
that the only other way to get an extension on a transfer was to submit
a hardship application, which complainant did not do.
Finally, the agency noted that complainant presented no evidence that
the agency's actions were motivated by his sex or age, as opposed
to the legitimate non-discriminatory explanations discussed above.
The agency concluded that complainant failed to establish discrimination
or retaliation by a preponderance of the evidence.
On appeal, complainant reiterates many of the contentions he raised
during the investigation. He notes that the agency did not deny any
of the actions of which he complained, but instead tried to establish
that they were normal occurrences. He argues that there are numerous
unanswered questions, particularly focusing on the lack of documentation
for the various personnel actions. He argues that no one ever told him of
any shortcomings or expressed dissatisfaction with the job he was doing.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue), we first find that complainant failed to establish
a prima facie of sex or age discrimination. A thorough review of the
file reveals that he provided no evidence to indicate that his sex or
age motivated the agency's actions.
Turning to complainant's claim of retaliation and applying the standards
set forth in Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), we find that in
regard to the majority of the issues alleged, even assuming complainant
established a prima facie case of retaliation, he failed to establish
that the agency's actions were motivated by his prior EEO activity.
Although complainant claimed that due to his prior EEO activity his
workload was unfairly increased, he failed to establish that his workload
was greater than that of other agents or that any of his assignments were
motivated by retaliatory animus. We note that S1 testified that everyone
in the office was inundated with work and that when complainant left,
his replacement had responsibilities equal to those of complainant.
Complainant failed to establish that this explanation was a pretext
for retaliation.
As to Issues 2 and 3, complainant's removal from SBP and transfer to
Chicago, we find that complainant failed to establish that these actions
were motivated by retaliation for prior EEO activity. The record reveals
that the agency's actions may have been motivated by complainant's
involvement in a lawsuit against the agency stemming from what the file
refers to as the �Group 33" investigation. The individual who first
requested that complainant be transferred out of the SBP position, one of
complainant's supervisors at SBP (S3), stated that he felt complainant
was not doing a good job because he was bitter about the Group 33
investigation and that he therefore asked the Chief of Operations (CO)
if complainant could be reassigned. CO than recommended to the Career
Board that complainant be transferred to the ASAC position in Chicago.
This indicates that the removal and subsequent transfer were motivated
by complainant's participation in a lawsuit against the agency. However,
complainant provided no evidence to suggest that this lawsuit constitutes
prior protected activity within the meaning of the law.
�Prior protected activity,� in the context of federal employment
discrimination law, includes opposition to discrimination or participation
in the statutory complaint process. See EEOC Compliance Manual, Section
8, �Retaliation,� No. 915.003 (May 20, 1998), at 8-3. More specifically,
opposition to discrimination means that an individual explicitly
or implicitly communicated to the agency a belief that its activity
constituted unlawful discrimination under Title VII, the Rehabilitation
Act, the ADEA, or the EPA. Participation means that an individual or
someone closely associated with him filed a complaint, or testified,
assisted, or participated in any manner in an investigation, proceeding,
hearing, or lawsuit under the statutes enforced by the EEOC. See id at
8-3 and 8-10. Here, the lawsuit involved complainant's claim that an
investigation into the DEA office in New York conducted by the agency's
Office of Professional Responsibility was mishandled, causing injury to
himself and other agents. Complainant provided no argument or evidence
to indicate that this lawsuit involved a claim of discrimination.<2>
Moreover, although complainant had engaged in prior EEO activity,
the filing of an EEO complaint in November 1993, there is no evidence
that either S3 or CO were aware of this activity. S3 and CO both
deny any knowledge of complainant's prior EEO activity. Furthermore,
complainant himself only states that he cannot �imagine� that anyone
in �upper management� was unaware of his complaint. He also admitted,
however, that he had no idea whether the CO or S3 were aware of his
EEO complaint. After a careful review of the record, we find that
complainant's removal from SBP and transfer to Chicago, while possibly
motivated by his participation in a lawsuit against the agency, were
not motivated by his prior EEO activity.
Similarly, complainant failed to establish that his lack of official
notice of his transfer was motivated by retaliation. Although it appears
that complainant did not receive notice of his transfer through the
normal channels, there is no evidence to suggest that this irregularity
was motivated by his prior EEO activity, nor does the record indicate
that complainant was harmed by this failure to follow procedure.
Furthermore, in regard to complainant's request for a delay of
the transfer, the record establishes that the Career Board which
reviews such requests on a case-by-case basis had an unwritten policy
of delaying transfers of agents whose children had begun their senior
year of high school. Three management officials testified that this
policy was intended to prevent children from being removed in the middle
of their senior year and that it did not apply to transfers that came
during the summer, because in those cases parents would have sufficient
time to enroll their children at a high school at the new location.
The individuals named by complainant as comparative employees were
granted their requests for delay because they each had a child who
was a senior in high school at the time the transfer came through.
Complainant's son, on the other hand, had not yet begun his senior year
when complainant's transfer order came through.
Moreover, the record also establishes that the agency had denied delay
requests from agents who had no prior EEO activity. Finally, although
complainant claimed that his request should have been granted based on
the fact that his son had learning disabilities and his mother was ill,
it is undisputed that the agency had an official �hardship request�
process, by which requests for delays based on medical or financial
factors were considered. It is also undisputed that complainant did not
submit a hardship request. In sum, there is no evidence to suggest that
complainant's prior EEO activity motivated the denial of his request
for a delay of his transfer.
Complainant did, however, establish an inference of retaliation in
regard to the second part of Issue 1, his reassignment to the SBP.
Complainant filed a prior EEO complaint in November 1993, alleging
discrimination under Title VII and the ADEA, only a year prior to the
transfer at issue. However, the agency was unable to produce either the
paperwork underlying the transfer, or a management official who would
admit responsibility for instigating the transfer. Commission precedent
holds that when a party fails to produce relevant evidence within its
control, the failure to produce such evidence raises an inference that
the evidence, if produced, would prove unfavorable to that party. See 29
C.F.R. �1614.108(c)(3)(i); see also Holm v. Department of Justice, EEOC
Request No. 05940916 (December 14, 1995), citing Medina v. United States
Postal Service, EEOC Request No. 05940468 (December 9, 1994). Here, as
it is the agency's failure which renders us unable to determine whether
the management official responsible for complainant's reassignment, was
aware of complainant's prior EEO activity, we infer that this knowledge
did exist. Furthermore, complainant testified that he did not want to
transfer to the SBP, noting that it was of lesser importance than his
CIS position because it involved fewer programs. S1 testified that
complainant was doing a good job in his CIS position, that S1 had no
problems with his work and that he had no idea why complainant was
transferred. The Executive Assistant to the Assistant Administrator
for Human Resources (EA) testified that it was rare for the Career Board
to transfer someone who was already in Operations, as complainant was,
from one Operation's Section to another. Given these circumstances,
we find that complainant raised an inference of retaliation in regard
to his transfer to the SBP position.
The agency attempted to articulate a legitimate non-discriminatory
reason for the transfer, by asserting that it was motivated by the
need for experienced agents in the SBP. As the agency was unable to
produce the management official responsible for the transfer, however, any
explanation it provides must be viewed as an after-the-fact justification.
While the agency's burden to articulate a legitimate non-discriminatory
explanation for its actions is not an onerous one, Commission precedent
holds that the agency must set forth, with sufficient clarity, reasons for
complainant's reassignment such that he has a full and fair opportunity
to demonstrate that those reasons are pretext. See Parker v. United
States Postal Service, EEOC Request No. 05900110 (April 30, 1990);
Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November
6, 1997). In providing an after-the-fact justification unsupported by
competent evidence for complainant's removal from CIS and transfer to
SBP, the agency has failed to meet its burden to articulate a legitimate
non-discriminatory reason for its actions. Accordingly, we find that
complainant's removal from CIS/ transfer to SBP in late 1994 was motivated
by retaliation. The agency's finding of no retaliation in this matter
is therefore REVERSED.
Accordingly, after a careful review of the record, including complainant's
statement on appeal, the agency's response, and arguments and evidence no
specifically discussed in this decision, we AFFIRM the agency's finding
of no age or sex discrimination in regard to Issues 1-5. We also AFFIRM
the agency's finding of no retaliation in regard to a portion of Issue 1
and Issues 2-5. Finally, because we find that complainant was subjected
to retaliation when he was removed from CIS and reassigned to the SBP
position, we REVERSE the agency's finding of no retaliation in regard to
that portion of Issue 1 and REMAND the matter to the agency for further
processing in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall revise all personnel documents to reflect that
complainant was serving in the position of Chief of Investigative Services
through June 1995, after which point he was transferred to the Chicago
Field Division.
The agency shall provide immediate training to management officials who
had supervisory authority over complainant between November 1993 and
December 1994 regarding their obligations and responsibilities under
Title VII.
The agency shall post copies of the attached notice, as detailed below.
The agency shall award attorney's fees, if applicable, as detailed below.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of his right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support
of his claim for compensatory damages within forty-five (45) calendar
days of the date complainant receives the agency's notice. The agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall issue a final decision pursuant to 29 C.F.R. � 1614.110(b).
The agency is further directed to submit a report of compliance, as
provided in the statement entitled Implementation of the Commission's
Decision. The report shall include evidence that the corrective action
has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Headquarters in Arlington,
Virginia copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
April 4, 2002
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at the Department of
Justice, Drug Enforcement Administration, Headquarters, in Arlington,
Virginia (facility).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have violated Title VII when it involuntarily
transferred the individual in question from a position as Chief of
Investigation Services to a position as Chief of Southwest Border
Patrol due to his prior EEO activity. As the individual has since
retired, the agency was ordered to: (1) change all personnel documents
to reflect that the individual served as the Chief of Investigative
Services through June 1995, when he was then transferred to a position
elsewhere; (2) conduct EEO training for the management officials with
supervisory authority over the individual during the relevant time;
(3) award proven compensatory damages; (4) award reasonable attorney's
fees, if applicable; and (5) post this notice.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 The record reveals that complainant retired in December 1995.
Complainant does not allege that his retirement was involuntary.
2The investigation was launched after confidential informants alleged
that agents assigned to Group 33, including complainant, were involved in
corruption, brutality and financial improprieties. Complainant, along with
several other agents assigned to Group 33 filed a civil action against DEA
officials, alleging that the investigation violated the Constitution and
various federal statutes. This civil action did not raise any EEO issues.