Steven Drielak v. Scott Pruitt , 890 F.3d 297 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2018 Decided May 15, 2018
No. 16-5299
STEVEN C. DRIELAK,
APPELLANT
v.
E. SCOTT PRUITT, ADMINISTRATOR,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01088)
Morris E. Fischer argued the cause and filed the briefs for
appellant.
Benton G. Peterson, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: HENDERSON and KATSAS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion of the Court filed by Senior Circuit Judge
RANDOLPH.
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RANDOLPH, Senior Circuit Judge: Steven C. Drielak
brought this action claiming that his supervisors at the
Environmental Protection Agency discriminated against him
because of his age, in violation of the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621–634. The district court,
Cooper, J., issued a comprehensive opinion explaining why the
court entered summary judgment against Drielak. Drielak v.
McCarthy, 209 F. Supp. 3d 230 (D.D.C. 2016).
EPA hired Drielak in 2003 as a law-enforcement specialist
within the agency’s Office of Criminal Enforcement, Forensics,
and Training. He was then 50 years old. For the next seven
years, Drielak rose through the ranks, eventually becoming
Director of the Homeland Security Division in the Criminal
Enforcement Office. In 2010, as part of an agency-wide
restructuring, EPA eliminated the Homeland Security Division.
The director of the Criminal Enforcement Office reassigned
Drielak to the Office’s Field Operations Program.
From 2010 through 2012, Drielak unsuccessfully applied
for open positions in the Criminal Enforcement Office. Each
time, the agency selected someone younger than Drielak. The
district court, after describing these events and other alleged
instances of age discrimination during this period, held that
many of Drielak’s claims were barred. Drielak, 209 F. Supp. 3d
at 234–35, 237–39. His claims were barred because Drielak did
not comply with an EEOC regulation requiring a federal
employee to “contact” a “Counselor within 45 days of the date
of the matter alleged to be discriminatory.” 29 C.F.R.
§ 1614.105(a)(1).1 The interplay between the statute and the
1
The Act gave Drielak another choice for bringing an action
in federal court. He could have notified the Equal Employment
Opportunity Commission of his intent to file an action. See 29 U.S.C.
§ 633a(d). He did not do so.
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regulation is more intricate than just described. The district
court’s opinion and an opinion of this court provide more
details. See Drielak, 209 F. Supp. 3d at 237; Rann v. Chao, 346
F.3d 192, 195–97 (D.C. Cir. 2003).
Drielak’s defense is in the nature of confession and
avoidance. He concedes that, prior to August 22, 2012, he did
not consult with a Counselor in EPA’s Office of Civil Rights
about several discriminatory acts he allegedly experienced more
than 45 days before. But he maintains that he should be excused
from the regulatory filing deadline. The regulation contains a
provision extending the 45-day period if “the individual shows
[1] that he or she was not notified of the time limits and was not
otherwise aware of them, [2] that he or she did not know and
reasonably should not have [] known that the discriminatory
matter or personnel action occurred, [3] that despite due
diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time
limits, or [4] for other reasons considered sufficient by the
agency or the Commission.” 29 C.F.R. § 1614.105(a)(2)
(numbering added).
Only the clause numbered [2] is involved in this case. See
Drielak, 209 F. Supp. 3d at 239 & n.2. To the district court, the
clause meant that Drielak had to show “that he did not have a
reasonable suspicion of age discrimination”2 until a colleague
2
The district court’s “reasonable suspicion” standard
apparently originated in Paredes v. Nagle, No. 81-1374, 1982 WL 319(D.D.C. Jan. 17, 1982), at a time when the regulation did not contain
the current “tolling” provision. Compare 29 C.F.R. § 1613.214(a)(4)
(1978) with 29 C.F.R. § 1614.105(a)(2) (2010) (adding clause [2]).
Even so, the EEOC endorses the district court’s view of its revised
regulation. See Williams v. Runyon, Appeal No. 01931274, 1993 WL
1506710, at *2 (EEOC Apr. 7, 1993); Spencer v. Esper, Appeal No.
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told him that a candidate for a position was not going to be
considered because he was close to retirement. Id. at 238; see
also Brief for Appellant at 7. We cannot see how this
conversation could possibly excuse Drielak’s noncompliance
with the 45-day period. Drielak 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 EPA’s Office of Civil
Rights.3
As to Drielak’s timely claims of age discrimination, he
failed to establish that he “suffered an adverse employment
action”—one of the “two essential elements of a discrimination
claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.
2008).
0120162771, 2018 WL 1466224, at *2 (EEOC Mar. 15, 2018).
Because neither party in this case raised any question about the
“reasonable suspicion” standard, and because this court has never
decided whether the “reasonable suspicion” standard accurately states
current law, we merely assume, without deciding, that it is the proper
standard.
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In addition, under the regulation, Drielak had the
“responsibility, when possible, to further investigate a personnel
action in order to determine whether the action was discriminatory.”
Miller v. Hersman, 594 F.3d 8, 12 (D.C. Cir. 2010). Each time
Drielak applied for a position, he knew that a younger candidate was
selected in his stead. Knowledge of even one non-selection in favor
of an individual who does not share a plaintiff’s protected
characteristic suffices to tip off a plaintiff to the possibility of
discrimination. See Stewart v. Ashcroft, 352 F.3d 422, 425–26 (D.C.
Cir. 2003). Drielak did not undertake any inquiry into the possibility
of age discrimination.
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Each of his claims has a common theme: his supervisors
undermined his authority and placed barriers in the way of his
professional development. In late-July 2012, Drielak was not
invited to a meeting during which one of his projects was
discussed. In August, a briefing paper for the Administrator of
the Office of Criminal Enforcement was assigned to one of
Drielak’s subordinates instead of to him. In October, Drielak’s
supervisors allowed one of his agents to work on a project
without his consent. These slights—Drielak says—relegated
him to “professional purgatory.” Brief for Appellant at 20.
We agree with the district court that these events did not
cause “objectively tangible harm” to Drielak of the sort that
would render them adverse employment actions. Brown v.
Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). While actions other
than an outright firing or demotion can be adverse, a claim based
on less must “rest on a significant change in [] job
responsibilities.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.
Cir. 2002). Here Drielak’s responsibilities hardly changed. He
was not invited to a meeting but continued to attend others. Cf.
id. (no longer attending management meetings was “not
sufficiently significant to amount to materially adverse
consequences”) (internal quotation marks omitted). Although
one of Drielak’s agents worked on a project Drielak would not
have approved, Drielak retained control over the majority of his
agents’ actions. Drielak’s own characterizations of his
experience are belied by the record. How could Drielak’s
exclusion from the initial drafting of the briefing paper for the
Administrator of the Office of Criminal Enforcement “severely
impact[] . . . his potential for being promoted”? Brief for
Appellant at 22. He was later given the opportunity to work on
this particular project and present it to the Administrator—an
opportunity he declined. The short of the matter is that Drielak
has “failed to provide any evidence, beyond his conclusory
assertions . . ., of any adverse consequence to his position or
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future career.” Forkkio, 306 F.3d at 1131 (internal quotation
marks omitted).
Drielak’s remaining claim alleges retaliation in response to
his invoking EPA’s internal grievance procedure. He argues
that his supervisors transferred four of his agents to another
division in April of 2014 to retaliate against him for filing a
complaint with EPA’s Office of Civil Rights.
To prove retaliation, a plaintiff must establish that he
suffered a materially adverse action because he brought or
threatened to bring a discrimination claim. Baloch, 550 F.3d at
1198. Drielak has shown no casual connection between the
reassignment of his agents and his protected activities.
Drielak filed his complaint with EPA’s Office of Civil
Rights in December of 2012. Drielak’s supervisors reassigned
his agents fifteen months later. The Supreme Court has
considered temporal proximity as evidence of causation so long
as the connection is “very close.” Clark County School District
v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (internal
quotation marks omitted). Fifteen months falls far outside the
three-to-four month periods the Supreme Court noted were
insufficient to defeat summary judgment in Clark County. See
id. at 273–74 (collecting cases). Even if we disregard Drielak’s
statement that he informed his supervisors about his complaint
in 2012 and even if we assume that his supervisors learned about
his protected activity in 2013 when they filed affidavits in
connection with the investigation, Drielak’s claim fails. Their
affidavits were filed more than six months before Drielak’s
reassignment, far from the temporal proximity Clark County
thought worthy of evidentiary value.
Drielak would have us avoid Clark County on the basis that
his evidence amounts to more than just temporal proximity. He
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insists that his reassignment was retaliatory because EPA’s
explanation for his reassignment was not true. But EPA’s
reason for acting—that an understaffed division needed more
agents—is an explanation Drielak himself recognized. Agents
in other divisions went through similar reassignments around the
same time, and the remainder of Drielak’s agents were
reassigned following his retirement the next year. Drielak’s
agents were already assisting the division in a supplemental role.
The division needed more than supplemental support.
Affirmed.