Labor & Employment Law Daily Events allegedly relegating EPA employee to ‘professional purgatory’ weren’t adverse actions
Thursday, May 17, 2018

Events allegedly relegating EPA employee to ‘professional purgatory’ weren’t adverse actions

By Kathleen Kapusta, J.D.

Rejecting an EPA employee’s assertion that he was relegated to “professional purgatory” when his supervisors undermined his authority and placed barriers in his way by excluding him from a meeting where one of his projects was discussed, assigning a briefing paper to his subordinate rather than to him, and allowing one of his agents to work on a project without his consent, the District of Columbia Circuit found these events did not amount to adverse employment actions for purposes of supporting his ADEA claim. Nor could he convince the court to revive his retaliation claim as the 15 months between his filing of a complaint with the EPA’s Office of Civil Rights and the alleged retaliatory reassignment of his agents was insufficient to defeat summary judgment, said the court, affirming the decision of the court below (Drielak v. Pruitt, May 15, 2018, Randolph, R.).

Hired at the age of 50 as a law-enforcement specialist in the Environmental Protection Agency’s Office of Criminal Enforcement, the employee eventually became Director of the Homeland Security Division. Seven years after his hire, however, the agency eliminated the Homeland Security Division and reassigned the employee to the Office’s Field Operation Program. For the next two years, he applied for positions in the Criminal Enforcement Office but each time, the agency selected someone younger.

Some claims time barred. The employee ultimately sued for discrimination in violation of the ADEA and the district court entered summary judgment against him. The court found that many of his claims were barred because he did not comply with an EEOC regulation requiring a federal employee to contact a “Counsel within 45 days of the date of the matter alleged to be discriminatory.” Although the employee admitted he did not consult with a Counselor in the EPA’s Office of Civil Rights about several discriminatory acts he allegedly experienced more than 45 days before, he argued he should be excused from the regulatory filing deadline because he “did not have a reasonable suspicion of age discrimination” until a colleague told him that a candidate close to retirement would not be considered for a position. But because he admitted, under penalty of perjury, that his conversation with this colleague—which supposedly first triggered his suspicion of age discrimination—took place after he had already complained about discrimination to the Counselor in the EPA’s Office of Civil Rights, the appeals court found this could not excuse his noncompliance with the 45-day period.

No adverse action. As to his timely claims of age discrimination, the D.C. Circuit found he failed to show he suffered an adverse employment action. While he claimed he was not invited to a meeting where one of his projects was discussed, he continued to attend other meetings. And although one of his agents worked on a project the employee would not have approved, he retained control over the majority of the agent’s actions. Nor did his exclusion from the initial drafting of a briefing paper severely impact his potential for being promoted, said the appeals court, noting that he was later given the opportunity to work on the project and present it to the Administrator—an opportunity he declined. Thus, said the court, he failed to provide any evidence, beyond his conclusory assertions, of any adverse consequence to his position or future career.

Retaliation. Turning to his claim that the EPA retaliated against him after he invoked its internal grievance procedure by transferring four of his agents to another division, the court observed that he filed his complaint in December 2012 and his agents were reassigned 15 months later. While the U.S. Supreme Court, in Clark County School District v. Breeden, considered temporal proximity as evidence of causation so long as the connection is “very close,” the court here pointed out that 15 months is far outside the three-to-four month periods the High Court noted were insufficient to defeat summary judgment in Clark County. Further, even if it disregarded the employee’s statement that he informed his supervisors about his complaint in 2012 and assumed that his supervisors learned about his protected activity in 2013 when they filed affidavits in connection with the investigation, the court found his claim still failed. The affidavits were filed more than six months before his reassignment, which was still far from the temporal proximity Clark County thought worthy of evidentiary value.

And while he argued that his evidence amounted to more than just temporal proximity because his reassignment was retaliatory and the EPA’s explanation for his reassignment was not true, the court pointed out that the EPA’s explanation—that an understaffed division needed more agents—was an explanation the employee himself recognized. Agents in other divisions went through similar reassignments around the same time, and the remainder of his agents were reassigned following his retirement the next year, said the court, noting that his agents were already assisting the division in a supplemental role and the division needed more than supplemental support.

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