[Redacted], Jefferey K., 1 Complainant,v.Avril D. Haines, Director, Office of the Director of National Intelligence, Agency.

Equal Employment Opportunity Commission

Jun 6, 2022

Appeal No. 2021004418 (E.E.O.C. Jun. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jefferey K.,1 Complainant, v. Avril D. Haines, Director, Office of the Director of National Intelligence, Agency. Appeal No. 2021004418 Agency No. ODNI 2020-010 DECISION On August 2, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 16, 2021, 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. At the time of events giving rise to this complaint, Complainant was a selectee for a Staff Reserve, Senior National Intelligence Service (SNIS) Officer for Economic Issues, SNIS Executive Tier 2 position at the Agency’s Directorate for Mission Integration, National Intelligence Council in Washington, D.C. On October 2, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (DOB: 1951) when, by letter dated August 7, 2020, the Agency rescinded Complainant’s conditional offer of employment.2 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is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. 2 Complainant’s formal complaint included two additional claims, which were dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1) and pursuant to § 1614.107(a)(2) for failure to contact an EEO Counselor in a timely manner. On appeal, Complainant does not contest the dismissal of these additional claims and, therefore, the claims will not be addressed further in this decision. 2021004418 2 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In its decision, the Agency found that Complainant did not identify a similarly situated applicant compared with whom he was treated differently, and failed to present evidence that the position was re-advertised with the same tier, duties, or responsibilities as Complainant alleged. The Agency further determined that Complainant did not provide any evidence that the management officials directly involved in the decision-making process concerning the rescission were aware of Complainant’s age or that he was over 40. The Agency concluded that Complainant failed to establish a prima facie case of discrimination based on age and even if Complainant had done so, the Agency provided legitimate, nondiscriminatory reasons for the rescission. Specifically, management officials affirmed that Complainant’s position was rescinded due to changes in the mission, re-evaluation of the position, potential downgrade of the position, and changes in the duties and responsibilities of the position. Regarding pretext, the Agency determined that while Complainant disagreed with the Agency’s changes, however, Complainant adduced no evidence of discriminatory animus. The instant appeal followed. 3 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 Chap. 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”). Upon review of the record in its entirety, we agree that Complainant failed to establish a nexus between his age and the rescission of the conditional offer, thus failing to establish a prima facie case of age discrimination. We further find that the Agency articulated legitimate, non- discriminatory reasons for its actions. 3 On appeal, Complainant acknowledges that he received a copy of the report of investigation but argues that the Agency failed to post the report of investigation on FedSEP. The Agency, along with other agencies in the Intelligence Community with similar security protocols that prevent them from transmitting electronic records produced and maintained on classified networks to unclassified networks, is exempt from the Commission’s digital filing requirements and instead submits paper documents to the Commission for administrative hearings and appeals. As such, the Commission has the complete record to review regarding the instant matter. 2021004418 3 Specifically, the record corroborates testimony provided by Agency officials affirming that the rescission was based on mission changes and reorganization in the Agency. The record is replete with reorganization discussions during the relevant period. Finally, we find that Complainant also failed to demonstrate pretext by preponderant evidence. As such, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021004418 4 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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 June 6, 2022 Date