0120092418
10-30-2009
Alfonso E. Mirabal, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Alfonso E. Mirabal,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120092418
Hearing No. 450200700397X
Agency No. 076300016
DECISION
On May 11, 2009 complainant filed an appeal from the agency's April 6, 2009 final order concerning an equal employment opportunity (EEO) complaint claiming 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. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
PROCEDURAL BACKGROUND
During the period at issue, complainant was the Regional Director of the US Census Bureau's Dallas Regional Office, a GS-15 level position. On January 19, 2007, complainant filed the instant formal EEO complaint. Therein, complainant claimed that he was discriminated against on the bases of national origin (Hispanic), sex (male), color (brown) and age (66) when:
1. On October 30, 2006, he received a "Does Not Meet" fiscal year 2006 Performance Appraisal;
2. He was reassigned from his Dallas Regional Office Director position to a Non-Supervisory, GS-15, Program Analyst position in Suitland. Maryland, effective January 7, 2007;
3. On November 21, 2006, the Agency proposed his removal from federal service for failure to accept a directed reassignment; and
4. He was forced to involuntarily retire as a result of the reassignment and proposed removal.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.1 Over complainant's objections, the AJ assigned to the case granted the agency's December 12, 2008 motion for a decision without a hearing and issued a decision on March 10, 2009. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that he was subjected to the alleged discrimination.
THE AJ'S DECISION
In her decision, the AJ made detailed findings of fact concerning the sequence of events which transpired in Summer 2006 and gave rise to the issues alleged herein. On June 23, 2006, the Census Bureau received a request from a news station pursuant to the Freedom of Information Act for a detailed summary of all laptop computers reported as stolen, lost, or missing for calendar years 2001 through 2006.2 In July 2006, through its Field Directorate, all the Regional and Assistant Regional Directors of the Bureau's twelve Regional Offices were instructed via email to respond to the FOIA request. Moreover, they were to provide additional information concerning encryption status, discipline, recovery and other data relevant to each region's laptop inventory. The Directors were notified that the request for information was "urgent." On August 17, 2006, an additional request for information was sent from the Field Directorate. Complainant delegated both assignments to his GS-12 IT Specialist. Neither complainant nor his Assistant Director reviewed the responses before they were submitted up the chain of command.
On August 22, 2006, the Director of the Census met with the Bureau's Associate Directors and reemphasized the importance of performing an accurate and comprehensive count of all missing, lost or stolen laptops, directing that each lost, stolen or missing laptop be identified and that the circumstances surrounding its status be analyzed. Consequently, on August 23, 2006, the Field Directorate sent another urgent e-mail to all of the Regional Offices requesting information about laptops that had not, at that point, been accounted for on the spreadsheet initially provided from Headquarters. In response to this request, the IT Specialist reported to complainant an additional 39 lost, stolen or missing laptops, but there is no evidence that this information was then forwarded to the Field Directorate.
On that same day, yet another request was made from Headquarters for surveys on all missing, lost or stolen laptops. Complainant forwarded this e-mail to the IT Specialist and another individual and asked them to respond the same day if possible. The IT Specialist completed the spreadsheet and submitted it up the chain of command. However, the Dallas Regional Office managers did not review it.
On August 25, 2006, the Field Directorate sent another e-mail to all Regional and Assistant Regional Directors requesting information in two stages. For the first stage, each Regional Office was instructed to complete a spreadsheet about all missing, lost, or stolen laptops showing: (1) laptops for which a property report had not been submitted; (2) laptops for which a property report had been submitted, but which did not appear on the original spreadsheet; and (3) laptops used for any reason in the Regional Office. This information was to be provided by August 28, 2006. For the second stage, the Regional Offices were instructed to perform a "hard scrub" to confirm the inventory control number for each employee possessing a laptop.
Complainant's Assistant Director forwarded this email to the IT Specialist whose first stage response identified an additional 29 missing, lost, or stolen laptops. However, the response failed to identify the additional laptops for which a property report had not been submitted. None of the Dallas Regional Office managers reviewed the IT Specialist's response.
In response to the request for a "hard scrub," the Dallas Regional Office identified, after the response due date, an additional 66 laptops that should have been reported in response to the previous emails. As a result of this discrepancy, complainant wrote a memorandum dated September 22, 2006, regarding his laptop count and inventory processes.
The Director of the Census requested an inquiry into the Dallas Regional Office's conduct regarding the laptop information requests and laptop inventory procedures. The Director of Human Resources led a three-member panel which conducted this inquiry. The inquiry found that the failure to report all lost, missing, or stolen laptops was attributable to the lack of personal leadership by Dallas Regional Management. The inquiry found that Dallas Regional Management did not exercise guidance and oversight over the IT Specialist and that they had "no process for effectively tracking and recovering property; and there was a message consistently delivered" to Regional Office Staff "verbally and nonverbally" that "laptop recovery was not a priority." The inquiry noted the lack of instruction and review regarding the responses to the requests for laptop information as well as lack of interest in responding to the IT Specialist's advisements, made as early as 2005, that the laptop "inventorying" process in the Dallas Regional Office was not adequately performing.
According to the original reports, 241 laptops were reported by the Regions as missing, lost or stolen. Following the FOIA response, an additional 105 laptops were added to this list, including 66 by the Dallas Regional Office. Most of the other offices reported none or very few additions to their original reports. The Seattle Regional Office reported the next highest number of additional missing, lost, or stolen laptops, with an addition of nine laptops to their report. The total number of lost, missing, or stolen laptops reported by the Dallas Regional Office was 86, more than twice the number of lost, missing, or stolen laptops reported by any other Regional Office.3
CONTENTIONS ON APPEAL
Complainant, represented by counsel, primarily argues on appeal that the Commission should vacate the final order and enter a default judgment against the agency as a sanction for the Director of the Census' refusal to cooperate with the EEO Investigator. Complainant argues that the AJ abused her discretion in declining to impose sanctions especially after the agency secured an affidavit from the same Director, one year after his retirement, in support of its motion for summary judgment. Complainant argues that it was the Director who made both the "does not meet" rating decision, and the decision to remove complainant from his Regional Director position.
Complainant further argues that: (1) the AJ should herself have identified the absence of the Director's contribution to the investigation and not relied solely upon complainant to bring it to her attention; and (2) that the AJ did not need to give the agency notice that a sanction might be imposed because the EEO Investigator had already done so. Complainant's second argument, that the AJ's issuance of a decision without a hearing was inappropriate, was exceptionally brief and lacking in compelling detail. Complainant argues that the real issue with the missing laptops was compromised "personally identifiable information," which was a consequence in each Regional Office, not just Dallas. Complainant also argued that the Director of the Census might hold complainant responsible for his own retirement at the end of calendar year 2007. However, complainant's argument in this regard lacked any links to his protected bases.
The agency's response is almost totally focused on why the AJ's decision should be affirmed. In its brief response to complainant's sanctions argument, the agency argues that the decision not to sanction was within the AJ's discretion and that the Commission should affirm her decision because there is no evidence to support an abuse of discretion. The agency argues that the cases cited by complainant involve much more egregious agency omissions than the one at issue herein. The agency concludes that even if a sanction was warranted, a default judgment would have been "over dramatic" and that the striking of the Director's affidavit would have sufficed. The agency notes that the facts from the Director's affidavit, upon which the AJ relied, were un-refuted.
ANALYSIS AND FINDINGS
The Commission first acknowledges that the refusal of the Director to cooperate in an EEO investigation would seem to suggest that the Census Bureau's understanding of its obligations under EEOC Management Directives 110 and 715 is lacking. However, we conclude that, in this case, these deficiencies do not mandate a finding that the AJ abused her discretion in declining to sanction the agency. If complainant could establish a prima facie case of discrimination on any of his alleged bases, then the credibility of the Director, as to who ultimately made the decisions that affected complainant, might be relevant, but complainant has failed to make that showing.
In so concluding, we find that the overwhelming evidence of record supports the AJ's conclusion that the Dallas Regional Office was quantitatively alone among its comparative Regional Offices for laptop inventory mis-management and the potential compromise of personally identifiable information. As Director of the Office, complainant was ultimately responsible for what occurred under his watch. The record establishes that complainant did not appreciate the gravity of the issue. His rating, reassignment and proposed removal were direct consequences of what was deemed ultimately to be his lack of personal leadership. There is simply no evidence that he was singled out for any other reason or that his decision to retire was the result of anything but his own decision not to accept the directed reassignment. We decline to draw an inference of discrimination based on this evidence. There are no material facts in dispute, and there are no credibility determinations that would warrant a hearing. The record suggests that although complainant had an apparently long, distinguished and meaningful federal career, the Commission finds that its premature conclusion was not the result of unlawful employment discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 30, 2009
__________________
Date
1 The agency originally attempted to process this complaint as a "mixed case" over complainant's objections. On June 20, 2008, the Merit Systems Protection Board concluded that it had no jurisdiction over the matter because complainant's retirement was voluntary. At that point, the agency's mixed case complaint processing ceased, and the case was returned to the Dallas District Office for a hearing.
2 This request followed reports of the compromise of personal data through laptop computer loss at the Department of Veterans Affairs.
3 The AJ noted that other Regional Directors who provided discrepant reporting received negative comments regarding the laptop count on their performance evaluations and did not receive any performance awards for the rating period ending September 30, 2006.
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0120092418
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013