Afton C.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Jul 30, 2019

0120181546 (E.E.O.C. Jul. 30, 2019)

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

Afton C.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.

Appeal No. 0120181546

Hearing No. 520-2016-00206X

Agency No. DFAS000352015

DECISION

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 March 12, 2018, final
order concerning her equal employment opportunity (EEO) 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. For the following reasons, the Commission AFFIRMS the Agency’s
final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment with the Agency. In July 2014, she applied for an Accountant, GS-0510-07/11,
position located in Columbus, Ohio, with the Defense Finance and Accounting Service (DFAS)
under Job Announcement Number D-DFAS-1169265-14.

Among other things, the job announcement advised potential applicants that the position was a
noncritical, sensitive position requiring a background investigation.

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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Additionally, the announcement advised applicants that the background investigation could delay
a starting date and that the Agency could withdraw an employment offer if the selectee could not
obtain a favorable security determination within a reasonable amount of time.

After interviewing for the position, the Agency provided Complainant with a “Tentative Job
Offer” on September 15, 2014. As stated in the announcement, the Agency informed
Complainant the offer was contingent upon her obtaining a security clearance. Complainant
accepted the tentative offer on September 16, 2014. The following week, the Agency informed
Complainant of the process and forms necessary to complete the security clearance background
check. As a part of the process, Complainant was required to complete Standard Form (SF) 86,
Questionnaire for National Security Positions. Complainant submitted the SF 86 almost a month
later. After some initial corrections, DFAS released the SF 86 to the Office of Personnel
Management (OPM) on October 28, 2014, with a request that it conduct a security investigation
on Complainant.

On November 14, 2014, OPM notified DFAS that it was rejecting Complainant's SF 86 and
requested additional information from Complainant. Specifically, OPM requested Complainant
include dates she attended college. Thereafter, Complainant resubmitted her SF 86.

On December 29, 2014, OPM again rejected Complainant’s SF 86 and requested Complainant
provided complete mailing addresses for some of her former employers. After learning of OPM’s
request for additional information needed for its security investigation, Complainant informed
the Agency on January 16, 2014, she would not provide any further information. On February
17, 2015, DFAS informed Complainant that it was withdrawing its tentative offer.

On March 20, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of national origin (Canadian) when on or about September 15, 2014, she
was made a tentative offer of employment with DFAS as a GS-0510-7/11 under Job
Announcement Number D-DFAS-1169265-14, which was subsequently withdrawn on February
17, 2015.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On
January 5, 2018, the Agency filed a Motion to Dismiss and argued the Commission did not have
jurisdiction over Complainant’s security clearance related allegations or discrimination based on
dual citizenship.

Over Complainant's objections, the AJ assigned to the case granted summary judgment in favor
of the Agency and issued a decision without a hearing on March 7, 2018. The AJ noted that
while citizenship is not a protected category over which the EEOC has jurisdiction,
Complainant’s EEO complaint was in regard to national origin.

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The AJ found even if Complainant made a prima facie case of national origin discrimination, the
Agency demonstrated a legitimate, nondiscriminatory reason for withdrawing the tentative offer.
Specifically, Complainant was taking too long to get the security clearance required for the
position.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant
appeal.

ANALYSIS AND FINDINGS

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). We are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s,
factual conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
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We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, we find that the AJ correctly determined that there are no
genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance
of a decision without a hearing was appropriate.

In the instant case, the AJ found that Complainant failed to establish that she was subjected to
discrimination. Generally, claims of disparate treatment are examined under the analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). In a disparate treatment case, a prima
facie case of discrimination may be done by Complainant's showing that she is in a protected
class, and was treated less favorably than other, similarly situated employees outside her
protected class. Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975).
The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).

Preliminarily, we note that with respect to Complainant's claim of discrimination based on
national origin, we have previously found in another complaint from Complainant that the term
“national origin” does not include citizenship. Raquel T. v. Department of Defense, EEOC
Appeal No. 0120141502 (Sept. 14, 2016) (citing Espinoza v. Farah Manufacturing Co., 414 U.S
86, 88 (1973)). Therefore, we find that to the extent that Complainant is attempting to allege
discrimination on the basis of citizenship, the AJ properly found that the Commission lacks
jurisdiction.
The AJ noted Complainant’s EEO complaint listed national origin (Canada). The AJ found that
even if this case is about national origin rather than citizenship and even if the Agency was
incorrect about the level of security the position needed, and even if mistakes were made about
any of the process, there is no evidence or inference of discriminatory intent on the basis of
national origin. We agree and find that assuming, arguendo, Complainant could establish a prima
facie case of discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. Complainant was offered the opportunity to provide more information for
OPM to complete a security investigation. Complainant refused to provide additional
information requested as a part of the security clearance investigation.
The Agency withdrew the job offer because Complainant had still not obtained a security
clearance and would not be cleared in the immediate future to meet the Agency’s need to fill the
position. Moreover, Complainant failed to establish by a preponderance of the evidence that the
Agency’s reasons were a pretext for unlawful discrimination or that similarly situated persons
were treated differently.

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CONCLUSION

Accordingly, this Commission AFFIRMS the Agency’s final order finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

July 30, 2019
Date