Carrol L.,1 Complainant,v.Ashton B. Carter, Secretary Department of Defense, (Missile Defense Agency), Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0120143008 (E.E.O.C. Nov. 23, 2016)

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

Carrol L.,1
Complainant,

v.

Ashton B. Carter, Secretary
Department of Defense,
(Missile Defense Agency),
Agency.

Appeal No. 0120143008

Hearing No. 570-2011-00325X

Agency No. 2009-MDA-001

DECISION

Complainant filed an appeal from the Agency’s August 5, 2014, final order concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.
Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Certified
Information Systems Security Specialist, GS-15, with the Special Access Program at the
Agency’s work facility in Washington, DC.

On September 22, 2009, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him on the basis of his race (African-American) and subjected
him to harassment when he was notified that he would be indefinitely suspended in a letter
dated June 1, 2009, effective June 15, 2009; he received an unfair and incorrect appraisal
rating; he was subjected to unfair and untrue accusations and derogatory information; was

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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denied a copy of his profile and access to his Missile Defense Agency account; and a named
Agency official sent disparaging and belittling e-mails to him.

On November 25, 2009, the Agency issued a final order wherein it dismissed the complaint on
the grounds of failure to state a claim and failure to initiate contact with an EEO Counselor in
a timely manner. Thereafter, Complainant filed an appeal with the Commission. In
Complainant v. Department of Defense, EEOC Appeal No. 0120100945 (May 12, 2010), we
reversed the Agency’s decision and remanded the complaint for further processing.
Subsequent to the remand, on September 22, 2010, the Agency after taking Complainant’s
statements into consideration set forth the following claims to be investigated:

1. Complainant was subjected to a hostile work environment on the basis of his race from June
13, 2008 through June 18, 2009 based on the following incidents:

a. On June 13, 2008, management revoked his Secure Access Program Facility
(SAPF) privileges because of a minor security incident.

b. On June 17, 2008, management placed him in an office that did not have a
telephone or computer.

c. On June 19, 2008, the computer installed in his office did not work properly and he
still did not have a telephone.

d. On July 28, 2008, management would not approve his Certified Information
Systems Security Professional (CISSP) fees.

e. Management failed to timely provide him with the certificate and pin that it received
in or about August 2007 to commemorate his thirty years of Federal service.

f. On August 18, 2008, management declined to approve any of the SF-182 forms he
submitted for studies for his PhD in Information Technology.

g. On September 18, 2008, management failed to permit him access to old files.

h. Complainant did not receive a reply to his September 29, 2008 request to change his
National Security Personnel System objectives.

i. On or about September 29, 2008, he was subjected to further investigation by
Agency counterintelligence staff.

j. On December 18, 2008, he received a NSPS rating of “1” on his performance
appraisal.

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k. Management issued his performance appraisal rating on December 22, 2008, which
affected the number of workdays he had available to work on his appeal of that
rating.

l. On February 2, 2009, the Agency pulled him back into his position at the MDA,
which caused him to lose the position he had accepted with the Agency’s Office of
the Secretary.

m. On March 3, 2009, the Agency’s Executive Director denied his request for
reconsideration of his NSPS rating.

n. On March 29, 2009, management approved his NSPS objective without his
concurrence.

o. On April 7, 2009, the Agency failed to process the Form 16, Copy of Profile
Request.

p. On April 7, 2009, the Agency provided him a Notice of Clearance Suspension and
placed him on administrative leave.

q. On June 15, 2009, he was suspended indefinitely without pay.

r. On June 18, 2009, his Supervisor denied his request to use paid use or lose leave.

2. Complainant was discriminated against based on his race when he was suspended
indefinitely from his employment effective June 19, 2009.

3. Complainant was discriminated against on the bases of his race, age (54), and in reprisal for
his prior EEO activity under Title VII and the ADEA when he was removed from Federal
service effective June 29, 2010.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on June 25, 2014.

The AJ found that no discrimination occurred. The AJ stated that on June 5, 2008,
Complainant was charging his cellular phone in his office within the SAPF and security
inspectors picked up the signal from Complainant’s phone and entered his office. In a follow-
up inspection of Complainant’s work area, numerous CDs that had not been inventoried were
discovered. Complainant was responsible in his position for ensuring the confidentiality,
integrity and availability of networks and data by developing and maintaining information
systems security programs and policies. The AJ noted that Complainant’s regular job duties
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involved reviewing system security plans for automated information systems. The AJ stated
that Complainant’s work station was located in the SAPF where strict security procedures were
in place to prevent information concerning such matters as surveillance and weaponry
technologies from falling into the possession of foreign adversaries. Complainant’s position
required a security clearance.

Subsequent to these two inspections, Complainant’s Supervisor, the Director for Special
Programs, Security and Intelligence Group, in consultation with his immediate Supervisor, the
Director for Security and Intelligence Operations, relocated Complainant to a workspace
outside of the SAPF pending further review and a final report. The office space that
Complainant was assigned to was not equipped with a functioning computer or telephone at the
time he relocated.

A follow-up forensic examination of Complainant’s computer hard drive disclosed that
Complainant had copied files from his office computer on to a personal mass storage device,
his iPod Nano, through a technique known as “sneakernetting.” Inspectors subsequently
interviewed Complainant as to the file transfers. The matter was referred to the FBI which
determined that Complainant had not engaged in espionage.

In July 2008, while these inspections were being conducted, Complainant requested approval
for payments for courses to maintain his CISSP certification and tuition payments for
coursework toward a PhD in Information Technology. The AJ observed that neither of the
aforementioned Supervisors approved Complainant’s requests and neither official approved
such payments for other subordinates. With regard to the matter of Complainant’s thirty-year
pin, the Supervisor presented it to Complainant in the hallway after convening available
employees for an impromptu ceremony. According to the AJ, the Supervisor received the pin
about one year earlier and had planned to give it to Complainant at the next scheduled “All
Hands” meeting, but Complainant was absent that day.

The AJ noted that in December 2008, Complainant obtained a position with the Office of the
Secretary of Defense (OSD) and requested a release date of January 27, 2009. However, the
OSD subsequently rescinded its job offer and on February 2, 2009, Complainant was
instructed to return to the MDA. The AJ stated that Complainant’s inability to access the
SAPF restricted the duties he could perform and as a result, the Supervisor revised
Complainant’s NSPS performance plan to reflect these limitations by decreasing the number of
performance objectives for him from three to one. The AJ stated that the Supervisor did not
agree to objectives that Complainant sought to include that involved duties which required
access to the SAPF.

With regard to Complainant’s performance rating for Fiscal Year 2008, the AJ noted that in
December 2008, the Supervisor issued Complainant a rating of “2”. Complainant
subsequently received an overall NSPS rating of “1” from the Pay Pool after the Pay Pool
Advisor explained that a sufficiently severe security violation could warrant a rating of “1”.
The rating was issued to Complainant on December 24, 2008, within a week of when the
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Supervisor issued ratings to his other subordinates. Complainant appealed his rating but it was
upheld by the Executive Director. According to the Executive Director, he decided not to
overturn any of the ratings in the 26 reconsideration requests he received for that performance
period.

On April 2, 2009, Complainant’s access to classified information was suspended and the
Deputy Director for Special Programs placed Complainant on paid administrative leave. The
memorandum issuing the administrative leave cited the suspension of Complainant’s security
clearance as the reason for removing Complainant from duty status and noted concerns about
Complainant’s willingness and ability to appropriately safeguard data. The AJ noted that on
April 7, 2009, Complainant submitted a Form 16 requesting access to e-mail messages he had
sent or received while working in the SAPF, but his request was not granted.

On June 1, 2009, the Supervisor informed Complainant that he would be suspended from duty
without pay indefinitely effective June 15, 2009, based upon the revocation of his security
clearance. The AJ stated that all of the positions at the MDA required a security clearance.
Complainant initiated contact with an EEO Counselor on July 20, 2009, and filed the subject
formal complaint on September 22, 2009. On April 14, 2010, the DIA issued its decision to
sustain the revocation of Complainant’s security clearance.

On May 11, 2010, the Agency proposed Complainant’s removal noting that Complainant’s
position required a security clearance and that it had been revoked. The AJ observed that
Complainant filed a response to the proposal, but the Agency sustained the proposal and
removed him effective June 29, 2010.

The AJ initially addressed Complainant’s claim of reprisal. The AJ stated that reprisal does
not apply to claims (1-2) given that the events at issue pre-dated Complainant’s initiation of the
EEO process on July 20, 2009. With regard to claim (3), the AJ found that Complainant failed
to set forth a prima facie case of reprisal as to his removal. The AJ stated that the evidence
does not support the existence of a causal connection between Complainant’s protected activity
and his removal.

As for Complainant’s claims of race and age discrimination, the AJ found that Complainant did
not establish a prima facie case because no employees were similarly situated to him with
respect to the treatment at issue. The AJ stated as to claims 1 (a-c) and 1(i) that there is no
indication that the MDA employees of any race or age engaged in conduct comparable to
Complainant and received more favorable treatment, or that other employees of any race or
age engaged in similar behavior. With respect to claim 1 (g), the AJ noted that the Agency’s
refusal to permit Complainant access to certain computer files followed the aforementioned
security transgressions and the concerns that ensued regarding Complainant’s access to data.
In terms of claims 1 (h) and 1 (n), the AJ stated that Complainant’s lack of access to the SAPF
limited the duties he could perform and precipitated the decision to decrease his number of
NSPS performance objectives. With regard to claim 1 (j), concerning his performance rating,
the AJ observed that pursuant to Agency personnel policy, Complainant automatically received
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an overall NSPS rating of “1” following his commission of security breaches. The AJ
observed that there is no evidence that other employees who committed security breaches
received higher ratings or were successful in their efforts to appeal these ratings. With regard
to claim 1 (r), the AJ stated that Complainant did not identify any employees who were
permitted to use paid leave while serving an indefinite suspension.

The AJ further found that there is no evidence to suggest that the Agency timed the issuance of
Complainant’s performance rating in order to reduce the time available for him to work on an
appeal or that any management officials in the MDA intervened in his transfer to the OSD or
otherwise influenced that office to revoke its offer of a job to Complainant. Additionally, the
AJ found that the record does not show that similarly situated employees who were
significantly younger or of a different race received more favorable treatment under
comparable circumstances with regard to the matters at issue in claims 1 (d-f) and 1 (o).

With regard to claims 1 (p-q) and (2-3), concerning personnel actions arising from
Complainant’s loss of his security clearance, the AJ observed that the Commission lacks
jurisdiction to address Complainant’s arguments concerning the decisions to suspend and
ultimately revoke his security clearance. The AJ noted though that the Commission can
address whether the Agency applied the security clearance requirement in a discriminatory or
retaliatory manner. The AJ found there is no indication that any of the MDA employees who
lost their security clearances were retained in a duty status. With respect to Complainant’s
argument that he should have been placed in a position that did not require a security
clearance, the AJ noted that all of the MDA positions require an active security clearance and
there is no evidence the MDA ever detailed or reassigned employees who had lost their
clearances to positions in other agencies. The AJ further found there is no evidence that the
Agency retained other employees, who had lost their security clearances in a paid
administrative leave status for longer than it kept Complainant in that status before suspending
them indefinitely without pay.

As for Complainant’s removal, the AJ stated that there is no indication the Agency ever
detailed, reassigned, or otherwise continued employing individuals of any race or age
following a final DIA adjudication affirming the revocation of their security clearances. Thus,
the AJ found that the Agency’s decision to remove Complainant did not result from
discriminatory application of the security clearance requirement. In explaining her finding that
Complainant failed to establish a prima facie case of reprisal concerning his removal, the AJ
pointed out that although the removal occurred after Complainant commenced EEO activity, it
is apparent in light of the close proximity in time between the DIA’s decision to sustain the
revocation of Complainant’s security clearance and the proposal to remove him, that the DIA
decision precipitated Complainant’s removal.

The AJ rejected Complainant’s hostile work environment claim presented in claim (1).
According to the AJ, it cannot be concluded that Complainant was subjected to the conduct at
issue based on his race, age, or prior EEO activity.

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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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that a hearing was warranted and that the AJ’s decision
contained factual errors, errors in judgment and was biased against him.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect
the outcome of the case.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a
nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant established a prima facie
case of discrimination, the Commission finds that Complainant failed to present evidence to
rebut the Agency's legitimate, nondiscriminatory reasons for its actions. Aside from
Complainant’s bare uncorroborated assertions, the record is devoid of evidence that she was
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subjected to a hostile work environment or that any of the employment actions alleged were
motivated by discriminatory or retaliatory animus.

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 which adopts the AJ’s
summary judgment in favor of the Agency.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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), 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. The requests 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 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).

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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

November 23, 2016
Date