0120121618
08-28-2012
Karl W. Moess, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Karl W. Moess,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120121618
Hearing No. 440-2011-00075X
Agency No. HSCIS178142011
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 23, 2011 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Asylum Officer at the Agency's Asylum Office in Chicago, Illinois.
On September 19, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of age (54 years old) when:
1) on July 29, 2010, he learned that the Office Director (Director) removed his additional duties as the office's Collateral Duty Safety Officer;
2) on August 11, 2010, the Supervisory Asylum Officer sent an e-mail to a number of employees, including him, soliciting their interest in attending a retirement seminar; 1 and
3) on or about August 11, 2010, he learned that the Director awarded all similarly-graded Asylum Officers cash awards for their performance during the fiscal year, but did not award him a performance award.
The Agency accepted claims (1) and (3) for investigation. The evidence gathered during that investigation shows that by July 2010, Complainant had served as the office's Collateral Duty Safety Officer for about ten years.2 In mid-2010, office management solicited volunteers in the Chicago Asylum Office for a number of collateral duty assignments, including the Collateral Duty Safety Officer. Management witnesses indicated that they tried to solicit volunteers for these collateral assignments on an annual basis.
Complainant and another employee volunteered to serve as the Collateral Duty Safety Officer. The Director selected the other employee (who was younger than Complainant). The Director explained that it was his policy was to rotate collateral duty assignments whenever possible so that employees could have opportunities for learning new skills. The Director stated that Complainant had served as the Collateral Duty Safety Officer for the past ten years because no one else had expressed an interest in volunteering for the position. However, in 2010, another employee besides Complainant expressed interest this collateral duty assignment. The Director stated that he chose the selectee because she was very capable and because he thought rotating the position was good for the office.
With regard to Complainant not receiving a performance award, the Director explained that the Chicago Asylum Office policy was to give cash awards only to employees who received "Outstanding" performance ratings. No employee who did not get an "Outstanding" received an award. The Director stated that management did not award Complainant a cash award because Complainant did not receive an "Outstanding" performance rating, but received a rating of "Excellent."
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing, but the AJ ultimately remanded the case back to the Agency without a hearing to issue a final decision in this matter.3
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for age discrimination.
The instant appeal followed. Complainant proffers no statement on appeal.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, 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").
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 Construction 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 United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
During the investigation, we find that management witnesses articulated legitimate, nondiscriminatory reasons for the disputed actions. With regard to the collateral duty assignment, the Director stated that management solicited volunteers for collateral assignments on an annual basis, including the Collateral Duty Safety Officer assignment. He further stated that he tried to rotate the collateral assignments around among the volunteers so employees had a chance to learn new skills. He said that Complainant had held the Collateral Duty Safety Officer assignment for ten years because no other employee had volunteered for the job. However, in 2010, another employee besides Complainant volunteered to be the Collateral Duty Safety Officer, so he was able to rotate the assignment to her. With regard to the awards, the Director explained that only employees rated as "Outstanding" received awards and Complainant was rated as "Excellent" not "Outstanding."
Complainant has not produced evidence to show that the Agency's explanations were a pretext for age discrimination. Complainant only offers mere speculation that his age was a factor in these matters. While Complainant argues that he was more qualified for the collateral duty assignment than the selectee, the Director did not state he made the switch in order to get the best qualified employee. Rather, he made the switch in order to rotate the assignment, as he did with other collateral duty assignments, in order to give all employees who volunteered a chance to learn new skills. With regard to the awards, Complainant proffered the name of a comparator who he alleges was treated more favorably. However, the record shows that not only did this employee receive an award because she was rated as "Outstanding" which Complainant was not, but that she was also about three years older than Complainant. There is no evidence that any employee rated as "Excellent" like Complainant received an award.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to 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 (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
August 28, 2012
__________________
Date
1 The Agency dismissed claim 2 for failure to state a claim. Complainant has not specifically challenged this dismissal on appeal, and we affirm the Agency's dismissal.
2 As Safety Officer, Complainant was automatically a member of the Agency's Occupational Health and Safety Board.
3 The record before us does not explain why the AJ remanded the case without a hearing. However, Complainant has not challenged this on appeal and we will not address it further.
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0120121618
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121618