0120171153
08-15-2018
Berry K.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Berry K.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120171153
Hearing No. 520201600076X
Agency No. 7W1M14002R
DECISION
Complainant timely appealed, under 29 C.F.R. � 1614.403, the Agency's March 15, 2017 Final Order, concerning a complaint he raised with the Equal Employment Opportunity Commission ("EEOC" or "the Commission"), 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. and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant, a non-government employee, had been selected to serve as a Summer Intern at the Air Force Research Lab ("AFRL") in Rome, New York.
On September 11, 2014, Complainant filed an EEO complaint alleging discrimination (disparate treatment) by the Agency on the bases of national origin (Iranian) and age (55) when:
On May 15, 2014, his summer internship offer was rescinded.
On October 30, 2014, the Agency dismissed the matter for failure to state a claim, reasoning that Complainant was not an Agency employee, but rather, an applicant for employment for a private sector organization. See 29 C.F.R. � 1614.103(c). The internship program was run by the Griffiss Institute ("GI"), a private sector organization which hired its interns through a non-government staffing firm. However, the interns would work at the Agency's Rome New York Lab facility on Agency property, and use Agency equipment. Additionally, the interns were mentored by Agency personnel. Complainant appealed, and the Commission found insufficient evidence to establish that the Agency and GI were not "joint employers." See EEOC Appeal No. 0120150351 (Mar. 11, 2015). Upon review of additional evidence submitted by the Agency, the Commission ordered the Agency accept Complainant's complaint.
On April 30, 2015, the Agency issued a Notice of Acceptance to Complainant, informing him that his complaint would be investigated. Afterward, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge ("AJ"). Complainant timely requested a hearing. After holding a telephonic "pre-hearing" on October 5, 2016, the Agency submitted a motion for a decision without a hearing, which, over Complainant's objection, the AJ granted in the Agency's favor.
In reaching his decision, the AJ determined the following undisputed facts:
On April 23, 2014, Complainant was notified of his selection for the position of Summer Intern contingent on a favorable National Agency Check with Inquiries ("NACI"). In this context, the purpose of a favorable NACI was to obtain a Common Access Card ("CAC"), necessary to access Agency property and government networks that the interns used throughout the internship. All contractors, both military and civilian, were required to undergo an NACI before they could obtain a CAC. The Agency was responsible for performing necessary background checks at the request of outside entities such as GI.
The Chief of Information Protection, at the Agency's Rome, New York facility, (American, age 55) ("CIP"), processed the NACI for each of GI's 28 prospective interns. When conducting Complaint's NACI, the CIP saw that Complainant had already undergone a National Agency Check with Local Agency Checks and Credit Check ("NACLC") in September 2011. The NACLC is more "in-depth" than the NACI as it is intended to determine eligibility for "secret" level clearance. Complainant did not pass the NACLC, and when he appealed to the Defense Office of Hearings and Appeals ("DOHA"), he was again determined "Eligibility Denied." Prior denial of clearance is grounds for an unfavorable NACI. CIP, notified the Commander of the Rome Research Site (American, 59), and they agreed that the denial meant Complainant would not have a favorable NACI rating and was ineligible for a CAC. CIP informed the Headquarters functional lead for Security/Information Protection (AFMC/IP), which issued Complainant an unfavorable NACI result.
CIP informed the Program Manager of the GI Summer Internship that Complainant was not eligible for a CAC. The GI Program Manager notified the GI Director. In instances where an applicant does not pass their NACI, the sponsoring entity may ask the Agency to conduct a new background check. As they did not raise it, CIP did not discuss this option with GI personnel, and on May 15, 2016, the Director decided to rescind the internship offer.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Here, the AJ dismissed Complainant's complaint was on procedural grounds, adopting the Agency's finding that Complainant's complaint was untimely. See 29 C.F.R. �1614.107(a)(2). Alternately, the AJ found that the Agency provided a legitimate nondiscriminatory reason for its actions, and that Complainant failed to produce evidence to show that a question of fact exists concerning whether the Agency's reason was pretext for discriminatory motivation.
Timeliness
In relevant part, 29 C.F.R. �1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. The regulation set forth under 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
Here, it is undisputed that Complainant's first contact with an EEO Counselor occurred on July 7, 2014, more than 45 days after he became aware of the alleged discriminatory act on May 15, 2014. However, the Agency waived its option to dismiss Complainant's claim on timeliness grounds when it did not include this rationale in its October 1, 2014 final decision. Moreover, the Commission ordered the Agency to accept Complainant's complaint for investigation, which it did in its April 30, 2015 Notice. Therefore, Complainant's complaint cannot be dismissed on timeliness grounds at this stage.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency's legitimate nondiscriminatory reason for issuing Complainant an unfavorable NACI, thereby preventing him from obtaining a CAC to access to the Rome New York Lab and government networks, was that his record reflected a prior denial of clearance. The Agency's legitimate nondiscriminatory reason for not offering Complainant the opportunity to undergo a new NACI was that such a request was the prerogative of the GI, and the GI Director did not request one. Even if a new NACI was conducted it could take up to 8 months to complete, and Complainant's internship was set to end in about three months.
On appeal, Complainant does not dispute his 2011 NACLC results and DOHA finding of "Not Eligible," but argues that this should not have disqualified him for the internship. Complainant cites the Chief Department Counsel for DOHA, who stated that "unfavorable determination for eligibility for access to classified information not itself, grounds for denying CAC eligibility. This is because the Adjudicative Standards under which CAC adjudications take place differ significantly from others... it is possible to be denied a security clearance for reasons that are not disqualifying for a CAC." Complainant further contends that CIP, motivated by discriminatory animus, did an unnecessarily thorough search when conducting his NACI, and failed to offer alternative means to qualify for a CAC or run a new NACI for Complainant.
Complainant's assertions assume, without evidentiary support, that CIP was obligated to notify GI of the option to send a formal request for a new NACI or any alternate options for providing Complainant access. Based on the record, including affidavit testimony, CIP acted in accordance with Agency Policy, and ultimately, was not the final decisionmaker on Complainant's CAC eligibility. Further, Complainant does not demonstrate any other similarly situated individuals outside his protected class were provided with this benefit by CIP. Complainant other arguments are not supported by sufficient evidence to raise a question of fact warranting a hearing.
Finally, we note that there is nothing to support complainant's argument that the AJ was biased or conducted matters inappropriately.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision
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. 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
August 15, 2018
__________________
Date
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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0120171153
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