0320130002
08-12-2016
Gia M.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gia M.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Petition No. 0320130002
MSPB No. CH-0752-10-0927-I-2
DECISION
On October 1, 2012, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning her claim of 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, we CONCUR with the MSPB's ultimate finding of no discrimination.
ISSUE PRESENTED
The issue presented is whether the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish her affirmative defense of discrimination on the basis of reprisal for prior protected EEO activity (opposing discrimination in late 2009 or early 2010; filing an EEO complaint in January 2010) in connection with her 30-day suspension.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Secretary for the Agency's Office of General Counsel (OGC) in Indianapolis, Indiana. Petitioner's chain of command included the Legal Office Manager (S1) and the General Counsel (S3).
In late 2009 or early 2010, Petitioner accessed documents in the OGC ProLaw database that were related to an OGC position a coworker (CW) had unsuccessfully applied to. The documents consisted of the applicant resumes, the applicant questionnaires, the applicant referral list, and an email from Human Resources informing the selectee of the selection. Some of the documents contained the following language: "FOR OFFICIAL USE ONLY. This message may contain (or contains) personnel data or information covered by the Privacy Act of 1974. Please ensure this information is protected from unauthorized access and/or disclosure." The documents were located in a file called "OGC Recruit Actions-Paralegals and Support Staff" and S1 did not "lock down" the file to restrict access. Petitioner printed the documents and provided them to CW.
Subsequently, as part of an Office of Internal Review (OIR) investigation into whether an OGC employee was passing sensitive information to an outside source, the Agency found the documents in CW's possession. When questioned about the documents by OIR on February 18, and March 2, 2010, CW stated that Petitioner had provided them to her, was aware she was in the process of submitting an EEO complaint, and had suggested she use them in support of her EEO complaint. On March 4, 2010, Petitioner submitted a sworn statement to OIR. Among other things, Petitioner stated that any OGC administrative employee could access the documents and she had no reason to believe the documents were "off hands" because similar documents had been given to OGC administrative employees in the past when setting up interviews. When asked if she had a work-related reason to view or print the documents, Petitioner responded, "No." When asked if she had removed the header that would identify the documents as being accessed and printed from her computer, Petitioner responded, "I think so, not sure." When asked about her reason for removing the header, Petitioner responded, "If I did it would have been to keep my name out of whatever."
On May 7, 2010, the Assistant General Counsel (PO) issued Petitioner a notice of proposed
30-day suspension on the charge of unauthorized use of government information. Specifically, PO stated that Petitioner accessed, printed, and provided documents to CW without having a
job-related reason, a supervisory instruction, or management authorization to do so. In addition, PO stated that Petitioner's decision to remove the identifying header information showed that she knew the documents were off limits to her. Moreover, PO stated that, even if Petitioner provided the information to help CW with an EEO complaint, there were established procedures for complainants to obtain relevant documentation from the Agency and her disclosure of the documents to CW was not an appropriate or authorized procedure.
On June 14, 2010, in her oral response to the proposed suspension, Petitioner argued that the Agency was punishing her for opposing discrimination. Among other things, Petitioner asserted that she accidentally found the documents in the OGC ProLaw database, recognized them as evidence of discrimination, and provided them to CW. In addition, Petitioner asserted that anyone in OGC could have seen the documents because anyone in OGC could access the OGC ProLaw database.
On July 23, 2010, the Director of Resource Management (DO) issued a decision sustaining the suspension. Even if Petitioner discovered the documents in the OGC ProLaw database by accident, DO stated that she chose to view, print, and provide them to CW when she had no authorized purpose or job-related need to do so. As to Petitioner's assertion that she was opposing discrimination, DO stated the following:
There were other, more appropriate venues (such as the pending EEO investigation) for [CW] to obtain this information rather than you misusing your access to the ProLaw system ... you chose to act in the shadow by lifting documents to which you found access, deleting information which could track the documents back to you, and passing them along to someone with no official or even legitimate need to know names, addresses, and other personal information about unsuccessful candidates for a position.
MSPB Mixed Case Appeal
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity (opposing discrimination in late 2009 or early 2010; filing an EEO complaint in January 2010) when it issued her a 30-day suspension.
On September 8, 2011, after a video-conferenced hearing,2 an MSPB Administrative Judge (AJ) issued an initial decision on the appeal. The MSPB AJ sustained the charge, found that Petitioner did not establish discrimination on the basis of reprisal for prior protected EEO activity, and affirmed the suspension.
Regarding Petitioner's duties, the MSPB AJ found the following facts: Her secretarial duties included maintaining office records and using personal computers to store and track data. OGC routinely handled and stored records containing sensitive information, including information that was privileged, proprietary, or privacy-act protected. In the course of her duties, she regularly accessed and handled such sensitive information as well as other official government documents. Because of her OGC position, she had a security clearance.
Regarding the charge, the MSPB AJ found that Petitioner engaged in misconduct as described. Although Petitioner testified that she opened the documents because she thought they might contain work-related information she would be responsible for using in her work, the MSPB AJ did not credit her testimony, in part, because she had previously admitted in her sworn statement to OIR that she had no work-related reason to view or print the documents. Although Petitioner argued that she did not know the information contained in the documents was confidential, the MSPB AJ found otherwise. In so finding, the MSPB AJ determined that: (1) some of the documents viewed by Petitioner contained confidentiality language; (2) because Petitioner testified that she had access to many similar selection documents in the course of her duties, she knew or should have known about the confidential nature of the information in such documents; and (3) because Petitioner admitted in her sworn statement to OIR that she likely removed the identifying header information to "keep [her] name out of" it, she had an understanding that the information in the documents was confidential and did not want anyone to know she was the individual who accessed the information.
Regarding discrimination, the MSPB AJ noted Petitioner's two arguments: (a) the Agency suspended her for the actions she took in opposing discrimination; and (b) S1 and S3 suspended her because she filed an EEO complaint against them. As to (a), the MSPB AJ found that Petitioner did not engage in protected opposition activity because she did not have a reasonable belief that the information she accessed, printed, and provided to CW revealed Agency discriminatory conduct.
As to (b), the MSPB AJ found no evidence of reprisal. First, the MSPB AJ credited S1's testimony that she had no part in the suspension action. Second, citing documentary evidence in the record, the MSPB AJ found that S3's official role in the suspension was peripheral because his only official act was appointing PO as the proposing official. Third, the MSPB AJ found that S3 did not influence the actions of PO or DO. Although Petitioner asserted that PO could only act as S3 wished (because PO was under S3's supervision), the MSPB AJ found no evidence to support that assertion.
The MSPB AJ also credited DO's testimony that she was not under S3's supervision, that S3 called her on one occasion to ask when she would render a decision, and that she responded she would issue a decision when she was ready. Fourth, the MSPB AJ found that Petitioner did not show that the Agency treated her differently than similarly situated persons without prior protected EEO activity. Although Petitioner cited S1 as a comparator, the MSPB AJ found that S1 was not similarly situated because S1 made a mistake in not locking down the documents3 whereas Petitioner's actions were intentional. Although a Human Resources employee (HR1) testified about an incident involving another employee (his supervisor told him that five years ago another employee was counseled after the employee went into personnel files, obtained someone's phone number, and gave it to a coworker for personal reasons), the MSPB AJ found that HR1 did not have first-hand knowledge of the incident, HR1 did not know who the employee was, the incident happened five years ago, and the protection of personal information and documents had received greater scrutiny in more recent years.
Petitioner filed a petition for review with the Board. On August 31, 2012, the Board issued a final order denying Petitioner's petition. Petitioner then filed the instant petition. Petitioner did not file a timely supporting statement.4
STANDARD OF REVIEW
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
ANALYSIS AND FINDINGS
Protected Activity: Opposition
The anti-retaliation provisions made it unlawful to discriminate against an individual because she has opposed any practice made unlawful under the employment discrimination statutes.
EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.B.1 (May 20, 1998) (Compliance Manual). Examples of opposition include threatening to file a formal complaint alleging discrimination, complaining to anyone about alleged discrimination against oneself or others, refusing to obey an order because of a reasonable belief that it is discriminatory, and requesting reasonable accommodation or religious accommodation. Id. at 8-II.B.2.
Although the opposition clause in each of the EEO statutes is broad, it does not protect every protest against job discrimination. Id. at 8-II.B.3. The manner in which an individual protests perceived employment discrimination must be reasonable in order for the anti-retaliation provisions to apply. Id. at 8-II.B.3.a. In applying a "reasonableness" standard, courts and the Commission balance the right of individuals to oppose employment discrimination and the public's interest in enforcement of the EEO laws against an employer's need for a stable and productive work environment. Id. Public criticism of alleged discrimination may be a reasonable form of opposition; courts have protected an employee's right to inform an employee's customers about the employer's alleged discrimination, as well as the right to engage in peaceful picketing to oppose allegedly discriminatory employment practices. Id. On the other hand, courts have found that certain activities, such as searching and photocopying confidential documents related to alleged discrimination and showing them to coworkers were not reasonable and thus not protected. Id.
Upon review of the record, we find that Petitioner did not engage in protected opposition activity because the manner of her opposition was not reasonable. First, we agree with the MSPB that Petitioner knowingly accessed, printed, and provided confidential documents to CW. Specifically, it is undisputed that Petitioner accessed, printed, and provided the documents to CW. In addition, the documentary and the testimonial evidence in the record supports the MSPB's determination that Petitioner was aware of the confidential nature of the information contained in the documents. Second, we emphasize that the Commission explicitly noted, in its Compliance Manual, that courts have found that the following opposition activity was not reasonable and thus not protected: searching and photocopying confidential documents relating to alleged discrimination and showing them to coworkers. We find that Petitioner's actions, i.e., accessing and printing confidential documents relating to alleged discrimination and showing them to CW, were of a similar manner. Accordingly, we find that Petitioner's conduct of accessing, printing, and providing confidential documents to CW did not constitute protected opposition activity.
Disparate Treatment
To prevail in a disparate treatment claim, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A petitioner must initially establish a prima facie case by demonstrating that she 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, 441 U.S. at 804 n.14. 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). To ultimately prevail, a petitioner 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 Ctr v. Hicks, 509 U.S. 502, 519 (1993). Typically, pretext is proved through evidence that the agency treated a petitioner differently from similarly situated employees or that the agency's explanation for the adverse action is not believable. Compliance Manual, at 8-II.E.2. Pretext can also be shown if the agency subjected a petitioner's work performance to heightened scrutiny after she engaged in protected activity. Id.
Assuming, arguendo, that Petitioner established a prima facie case on the basis of reprisal for prior protected EEO activity (filing an EEO complaint in January 2010), we find that the Agency articulated a legitimate, nondiscriminatory reason for suspending her; namely, her unauthorized use of government information when she accessed, printed, and provided confidential documents to CW. Moreover, we find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for reprisal discrimination. We agree with the MSPB that the evidence in the record did not show that the Agency treated Petitioner differently from similarly situated employees, that the Agency's explanation for her suspension was not believable, or that the Agency subjected her work performance to heightened scrutiny after she filed her EEO complaint.
CONCLUSION
Based on a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no reprisal discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish her affirmative defense of reprisal discrimination in connection with her 30-day suspension.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
_8/12/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 In Allen v. U.S. Postal Serv., EEOC Appeal No. 01A51259 (Aug. 21, 2006), the Commission approved video-conferencing as an acceptable alternative to an in-person hearing. The record does not show that either during the hearing or thereafter, there was any objection raised to the video-conferencing.
3 S1 testified that she received oral counseling for her part in the incident.
4 Petitioner did not file a supporting statement concurrently with her petition on October 1, 2012, but instead filed a supporting statement on October 26, 2012. A petitioner is required to file any supporting statement concurrently with the petition. See 29 C.F.R. � 1614.304(b). Accordingly, we decline to consider Petitioner's supporting statement as it was untimely filed.
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