Emmanuel L.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

May 4, 2017

0120151595 (E.E.O.C. May. 4, 2017)

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

Emmanuel L.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120151595

Hearing No. 570-2013-00879X

Agency No. FBI-2012-00185

DECISION

Complainant filed an appeal from the Agency’s final order dated March 9, 2015, finding no
discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

The record indicates that Complainant filed his complaint on August 15, 2012, alleging that:

(1) He was discriminated against based on race (White), sex (male), and age (over 40) when
his pay matching offer was not approved on May 30, 2012; and

(2) He was discriminated against based on race (White), sex (male), age (over 40), and in
reprisal for prior EEO activity when his student loan repayment application was denied
on July 17, 2012.

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.
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Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On January 23,
2015, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision. Complainant appealed the Agency’s final
order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists. Moreover, despite Complainant’s
contentions on appeal, we find no improper actions on the part of the AJ and the record was fully
developed.

Initially, despite Complainant’s contentions, we find that the AJ properly denied his motion to
amend the instant complaint to include his subsequent termination from his employment at the
Agency on the grounds that: on January 4, 2013, he, via his then attorney, filed a complaint in
district court on the same termination claim based on sex and in reprisal for prior EEO activity;
he failed to demonstrate he timely requested to amend the instant complaint to include the
termination; and the termination claim was not like or related to the instant complaint.2

2 On August 24, 2012, Complainant was terminated from his employment at the Agency during
his probationary period for failure to meet the suitability standards of the Agency. On January 4,
2013, Complainant, via his then attorney, filed a complaint in the United States District Court for
the District of Columbia, Case 1:13-cv-00008-RMC, concerning his termination based on sex
and in reprisal for prior EEO activity. On July 1, 2015, the District Court dismissed his case
without prejudice. On August 31, 2015, complainant filed an appeal of the District Court
decision to the United States Court of Appeals for the District of Columbia Circuit Court, USCA
Case #15-5246. On March 17, 2017, the Circuit Court issued an order, on its own motion, to
hold the case in abeyance pending the disposition by the Supreme Court of Perry v. MSPB, No.
16-399 (cert. granted Jan. 13, 2017) which is pending before the Supreme Court at this time.
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Also, we note that the AJ denied Complainant’s request to add the basis of retaliation to claim
(1) because: the request was made untimely, i.e., it was made at the time he filed his response to
the Agency’s Motion for Decision without a hearing (and after the discovery and after
completion of the Agency’s investigation); and he failed to identify any prior EEO activity or
opposition. Complainant argues that the AJ’s denial was improper. For the sake of argument,
we will consider, in this decision, that Complainant’s claim (1) was also based on discrimination
in reprisal for prior EEO activity in this decision.

After assuming arguendo that Complainant had established a prima facie case of discrimination,
the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the
alleged incidents. The record indicates that in May, 2011, the Agency posted a vacancy for the
position of Supervisory Contract Specialist/Unit Chief, GS-15, in the Finance Division.
Complainant, who at that time, was employed by the General Service Administration at the GS-
14, Step 3 level, applied and was ultimately selected for the position, GS-15, Step 1 level, at the
Agency and entered into duty at the Agency on August 29, 2011.

With regard to claim (1), Complainant’s first level supervisor (S1), indicated that prior to
entering on duty with the Agency in August, 2011, Complainant told S1 that he had another job
offer from a private employer for a position at a higher pay rate and inquired with S1 about a
possible pay match. S1 stated that she told complainant that she would encourage the Human
Resources Department to match his outside pay offer but did not make any promise to him since
S1 did not have the authority to make such an offer.

The Human Resources Specialist indicated that in early August, 2011, Complainant contacted
her and asked to receive a GS-15, Step 5 salary for the position he had been offered. The Human
Resource Specialist stated that because Complainant was transferring from one federal agency to
another, he could only receive increase of two steps in pay. Thus, since complainant was a GS-
14, Step 3 at his prior job, he could only increase to a GS-14, Step 5, at his new job. The
equivalent salary of a GS-14, Step 5 was a GS-15, Step 1. The position complainant accepted at
the Agency was a GS-15 position. Therefore, complainant entered into duty at the Agency at a
GS-15, Step 1 level.

The Assistant Director (AD) of the Finance Division also indicated that Complainant pursued the
salary match at issue with the AD and upper management after he began his employment at the
Agency but his request was denied. The AD stated that he had no knowledge his division had
ever given anyone an incentive payment/salary match. The AD speculated that other divisions
might have utilized such in the recruitment of individuals with highly specialized skills in short
supply, such as scientists and individuals with specialized technology skills. The AD stated that
Complainant’s position in his division did not require any specialized or unique skills that would
support such a salary match/incentive payment. The AD noted that there were about 43 qualified
applicants for the position for which Complainant was selected and there was nothing unique
about the skill sets required or the scarcity of qualified candidates that would warrant the salary
match.
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With regard to claim (2), S1 indicated that Complainant also inquired with S1 about his student
loan repayment before he came on board. S1 stated that he told Complainant the Agency had a
program but he could only apply after he came on board. S1 stated that no promise was made to
Complainant as to whether any application for a student loan repayment would be granted. The
AD stated that at the time Complainant initially applied for the Agency’s student loan repayment
program, he had not been employed with the Agency long enough to meet eligibility
requirements. The AD stated that Complainant then applied again the following open season in
fiscal year 2012. The AD stated that the AD forwarded the application to the Human Resources
Department, but the request was denied on July 17, 2012. The AD stated that the request was
denied based on Complainant’s lack of longevity in employment at the Agency and his ability to
repay his student loans. The AD indicated that new employees generally had to apply for several
years before receiving the funds. Complainant has not shown how these reasons were a pretext
for discrimination.

After a review of the record, we agree with the AJ that Complainant failed to rebut the Agency’s
legitimate, nondiscriminatory reasons for the alleged actions. Furthermore, we agree with the AJ
that Complainant failed to show that there were any similarly situated employees not in his
protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated
by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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
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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. The requests 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
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. 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

May 4, 2017
Date