0120073987
06-24-2010
Cheryl A. Sanders, Complainant, v. Lt. Gen. Keith B. Alexander, Director, National Security Agency, Agency.
Cheryl A. Sanders,
Complainant,
v.
Lt. Gen. Keith B. Alexander,
Director,
National Security Agency,
Agency.
Appeal No. 0120073987
Agency No. 05-006
DECISION
On September 18, 2007, Complainant filed an appeal from the Agency's
August 20, 2007, final decision 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency discriminated against
Complainant based on her age (49), race (Native American), sex (female),
and in reprisal for prior EEO activity when she was referred for a
psychological examination as a result of information obtained during
her security reinvestigation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Operational Staff Officer at the Agency's Regional Targets facility.
Complainant's five-year reinvestigation for her security clearance was
due. During the reinvestigation, it was reported by those interviewed
that Complainant had stated that the Agency had broken into her home and
personal computer. They also reported that Complainant's home life was
not happy because she had an abusive and domineering husband who would
not let her eat lunch with anyone other then himself, refused to let
her cut her hair, and required her to wear tight fitting clothing.
It was also reported that bruises had been seen on Complainant.
Further, several of people mentioned during the investigation that
Complainant and her husband had been involved in a number of law suits.
The investigative report recommended that, based on the information
obtained in the reinvestigation, an evaluation was needed in order to
rule out paranoid behavior.
The Agency referred Complainant to Psychological Services for an
evaluation. Complainant met with the psychologist on May 28, 2004.
She received his report on July 12, 2004, and felt that it contained
outrageously false and inaccurate depictions of her sessions with him.
Upon reading the report, Complainant maintained that she realized that
the main focus of the evaluation were incidents relating to her husband's
EEO cases. Therefore, on November 12, 2004, Complainant filed an EEO
complaint alleging that she was discriminated against on the bases of
race, sex, age, and reprisal for prior protected EEO activity when she
was referred to psychological services for an evaluation as a result of
information obtained during her security reinvestigation.1
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When Complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that Complainant failed to prove
that she was subjected to discrimination as alleged.
Specifically, the Agency's final Agency decision (FAD) found that,
assuming arguendo that Complainant met the requirements for a prima facie
case of disparate treatment based on age, race, and sex, the Agency had
articulated legitimate nondiscriminatory reasons for its actions; namely,
that Complainant was due for her five-year periodic reinvestigation and
therefore it followed the standard security guidelines in conducting
the reinvestigation. The Agency explained that sources were interviewed
as part of the standard reinvestigation and, based on the information
gathered from those sources, it was determined that an evaluation by
the Agency psychologist was necessary, because the Office of Security
needed to certify that Complainant was of sound judgment and reliability.
The Agency indicated that because individuals had expressed concerns
about Complainant's paranoia, Security had a duty to follow up regarding
these concerns. The Agency maintained, moreover, that Complainant was
referred for evaluation prior to the individuals in Security knowing of
her husband's EEO cases.
The Agency further indicated that Complainant failed to establish a prima
facie case of reprisal because the investigators involved were unaware of
Complainant's prior EEO activity. The Agency indicated that there is no
causal connection between the protected activity and any adverse action.
The Agency explained that Complainant's husband filed EEO complaints in
1998 and 1999. The cases were closed when summary judgment was issued
in favor of the Agency in June 2003. Complainant's reinvestigation
was ordered on October 28, 2003. Approximately one year after the June
2003 finding of no discrimination, Complainant's reinvestigation report
was reviewed and it was determined by the security representative that
Complainant needed to be referred for consultation with the Agency
psychologist. The Agency points out that Complainant's investigative
report did not include any reference to her husband's EEO cases. Finally,
the Agency reports that Complainant's reinvestigation was completed on
August 19, 2004, and her clearance was continued.
The Agency maintained that Complainant failed to show that its articulated
legitimate nondiscriminatory reasons were pretext for discrimination.
Therefore, the Agency issued a finding of no discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was retaliated against in
response to her testimony and the events surrounding her husband's
complaints.2 Complainant explains that during her husband's EEO process,
there were incidents were the house was broken into and EEO information
was erased from their home computer. Complainant also indicated that
there was a problem with her husband's credit card being cancelled.
Complainant contends that her referral to the psychologist was reprisal,
as it was an attempt to get her to recant testimony regarding events
involved in her husband's complaint. Complainant contends that the
psychologist called her "delusional" and indicated that both she and
her husband were paranoid, and characterized their 31 year marriage as a
"pathological marital relationship."
Complainant asserts that this attack was made against her because
her EEO testimony might prove damaging if it came to light in other
legal proceedings. She also maintains that she found the Agency's
actions to be an act of harassment. She maintains that the Agency's
characterization of her and her husband has damaged their reputations,
careers and earning potential. Complainant maintains that the Agency's
actions against her are likely to deter others from filing an EEO action.
Complainant requests that the psychological consultation be removed
from her records and destroyed; promotion or an early retirement option;
attorney's fees; compensatory damages, and punitive damages in the amount
of $3,000,000.
In response, the Agency indicates that the reinvestigation process was
performed according to standard procedures. The Agency indicates that,
based on the information that they received from Complainant's coworkers
regarding Complainant's paranoid tendencies, a review by a clinical
professional was called for. The Agency indicates that the psychologist
concluded that Complainant suffers from Histrionic Personality Disorder,
but did not have concerns about her security at that time.3 The Agency
maintains that it has received Complainant's request to have the report
removed but indicates that reports are generally not removed so that a
full picture of the reinvestigative process is at all times present.
The Agency also added that the report's presence will discourage a
similar action during her next reinvestigation because the issue has
already been investigated. Finally, the Agency asserts that Complainant
has failed to show that its nondiscriminatory reasons were pretext for
discrimination.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Discrimination Claim
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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, because the Agency has articulated
legitimate, nondiscriminatory reasons for its conduct. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the Agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the Agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The Commission finds that, even if we assume arguendo that Complainant
established a prima facie case of discrimination as to all alleged bases,
the Agency articulated legitimate, nondiscriminatory reason for its
actions; namely, that Complainant's five-year reinvestigation was due and
that, during the investigation, information was discovered which called
into question Complainant's fitness for holding a security clearance.
The Commission notes that the information regarding Complainant's belief
that her home and computer were broken into came from Complainant's
coworkers and supervisor. Several of the coworkers reported that
the information that they gave had come directly from Complainant.
Based on this information, the investigative report for Complainant's
security investigation was forward to the Agency's psychologist for
evaluation. The Commission has long held that employers may require a
medical examination or make disability related inquiries of an employee
only if the examination is job-related and consistent with business
necessity. See Enforcement Guidance: Disability-Related Inquiries and
Medical Examinations of Employees Under the Americans with Disabilities
Act (ADA) (July 27, 2000) (web version) (Guidance), at 5. This requirement
is met when the employer has a reasonable belief, based on objective
evidence, that (1) an employee's ability to perform the essential job
functions is impaired by a medical condition; or (2) that an employee
poses a direct threat due to a medical condition. See Guidance at 14.
Here, the Commission finds that the Agency's referral of Complainant for
an evaluation was lawful, and is supported by substantial evidence in the
record. The evidence shows that it was the Agency's standard practice
to forward any questionable information to the Agency's psychologist
for evaluation. The Commission finds that Complainant has not presented
any evidence which suggests that procedures were not followed or that
the timing of the reinvestigation was somehow linked to the processing
of her husband's EEO reports.
Further, with respect to Complainant's contention that the Agency's
conduct amounted to harassment, the Commission finds that the incidents
complained of in light of the facts in this case, were not severe
or pervasive enough to constitute harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997), citing
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (harassment
is actionable if it is sufficiently severe or pervasive to alter the
conditions of the Complainant's employment). The record supports the
finding that the security investigators, whom all indicate that they
were unaware of Complainant's EEO activity, had a legitimate concern
following the investigation, and so forwarded Complainant's case to the
psychologist for a consultation.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that Complainant has failed to demonstrate that she was subjected to
discrimination as alleged. Accordingly, the Agency's FAD finding no
discrimination is hereby affirmed.
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
June 24, 2010
Date
1 Complainant alleged that she was discriminated against based on race
because it was said that she was not allowed to cut her hair. She also
indicated that she was discriminated against based on sex and age because
a former supervisor told her that she was too old to wear short dresses.
2 Complainant included a discussion of the facts involved in her
husband's complaint in her brief.
3 The psychologist admits that a comment was made to Complainant about
the gender roles in her marriage because she indicated that her husband
shopped for her clothes.
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0120073987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073987