Miles T, Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.

Equal Employment Opportunity Commission

Aug 15, 2017

0120152588 (E.E.O.C. Aug. 15, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Miles T,
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.

Appeal No. 0120152588

Hearing No. 461-2015-00041X

Agency No. HS-USSS-21464-2012

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 15,
2015, final decision 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. and 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist at the Agency’s facility in Washington, D.C. On December 14, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American), color (black), age, and in reprisal for prior protected EEO
activity when on October 6, 2011, the Agency notified Complainant that his request to
participate in the District of Columbia Police and Firefighters Retirement and Disability
System/Federal Employee Retirement System (DC/FERS) had been denied.

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.

0120152588

2
At the conclusion of the investigation, the Agency dismissed the complaint, pursuant to 29
C.F.R. § 1614.107(a)(1), for stating the same claim that had been previously decided by the
Commission. On appeal, the Commission reversed the Agency’s dismissal and remanded the
matter for a full investigation. Complainant initially requested a hearing. The Equal Employment
Opportunity Commission Administrative Judge (AJ) assigned to the case ordered the Agency to
supplement the record by providing evidence as to “comparator ‘un-covered’ employees whom
the Agency granted and/or declined certification of their work hours for the purposes of entry
into [DC/FERS]” during the relevant time frame. The Agency provided the requested
documentation. Complainant subsequently withdrew his request for a hearing and, consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On
appeal, Complainant reiterates his contention that the Agency’s actions were motivated by
discriminatory animus and argues that the retirement conversion data provided by the Agency as
per the AJ’s order shows that there are similarly situated individuals, outside his protected
classes, who were approved for conversion.

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 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”).

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of race,
color, age, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the record shows that Complainant began
his career with the Agency in 1976, and worked in a variety of computer related positions,

0120152588

3
including Information Technology Specialist, which are classified by the Agency as “non-
covered” positions. The record also shows that, according to Agency policy, employees in non-
covered positions can request to transfer their retirement funds from the Civil Service Retirement
System to DC/FERS if they have a minimum of ten years employment and the equivalent of ten
years of “temporary or intermittent protection time.” Protection time is defined as hours earned
while actively performing duties, other than clerical, that are instrumental in providing a secure
environment for the protection of the President. In order to have a request granted, an employee
in a non-covered position must have their protection hours certified by the Agency’s Executive
Resources Board (ERB). The ERB was created in 2003 to “provide a more centralized decision-
making process and bring greater consistency and uniformity to the Agency’s decisions.” Since
the ERB began reviewing applications for certification of protection hours, it has not approved
any new requests.

The record shows that Complainant requested to participate in DC/FERS on multiple occasions,
but that his requests and appeals have been denied. The most recent certification request was
submitted in 2011, and was reviewed and denied by the ERB which found that the nature of his
work did not meet the standard for protection time as set out in the Agency’s policy. The record
also shows that, contrary to Complainant’s assertions on appeal, the employees identified as
having their protection hours certified for transfer to DC/FERS all had their original requests
approved prior to 2003, under the system in place prior to creation of the ERB. Accordingly, we
find that Complainant failed to show that the Agency’s articulated reasons for its actions were a
pretext for unlawful discrimination or retaliation.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;

0120152588

4
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.

0120152588

5

The court has the sole discretion to grant or deny these types of requests. 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

August 15, 2017
Date