United States Court of Appeals, District of Columbia Circuit
Steven C. Drielak, Appellant
E. Scott Pruitt, Administrator, Appellee
February 22, 2018
from the United States District Court for the District of
Columbia (No. 1:14-cv-01088)
E. Fischer argued the cause and filed the briefs for
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.
Randolph, Senior Circuit Judge
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).
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.
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). The interplay between the statute and the
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.
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  that he or she was not notified of the
time limits and was not otherwise aware of them,  that he
or she did not know and reasonably should not have  known
that the discriminatory matter or personnel action occurred,
 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  for other reasons
considered sufficient by the agency or the Commission."
29 C.F.R. § 1614.105(a)(2) (numbering added).
the clause numbered  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" until a colleague 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
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).
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
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 ...