0120141390
11-23-2016
Jannet O.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jannet O.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120141390
Hearing No. 510-2013-00276X
Agency No. 106588602562
DECISION
On February 26, 2014, Complainant filed an appeal from the Agency's April 6, 2016, final decision2 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. 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 (FAD).
ISSUE PRESENTED
Whether the FAD properly found that Complainant was not subjected to discrimination on the bases of race (African American), sex (female), and reprisal for prior EEO activity when, on June 10, 2010, she was removed from her position for failing to successfully obtain a security clearance, or for being ineligible to be assigned to a sensitive position.3
BACKGROUND
Complainant's August 18, 2010 formal complaint originally contained three claims of discrimination. Specifically, she claimed that she was discriminated against on the basis of race, sex, age, and reprisal when: (1) in April 2008, she was required to apply for a security clearance; (2) on May 20, 2010, her security clearance application was denied; and (3) on June 16, 2010, she was issued a Notice of Proposed Removal and subsequently removed because her security clearance application was denied. The Agency dismissed all three claims. Complainant subsequently filed an appeal with the EEOC's Office of Federal Operations (OFO). OFO issued an appellate decision finding that the Agency properly dismissed the first two claims, but improperly dismissed the third claim. See EEOC Appeal No. 0120110624 (Sept. 5, 2012). OFO remanded the claim to the Agency for processing in accordance with EEO regulations.
At the time of events giving rise to this complaint, Complainant worked as a Sheet Metal Mechanic at the Agency's Fleet Readiness Center Southeast (FRCSE) facility in Jacksonville, Florida. Complainant alleged that she was required to complete a security clearance in 2008, which ultimately led to her termination, due to her first line supervisor's (S1) discriminatory motives against her based on race, sex, and reprisal for prior EEO activity.
The record reflects that in or around June 2006, the Secretary of the Navy issued a mandate that required personnel with access to government computers, or sensitive and/or classified material, to undergo a background check. Based on the criteria issued by the Secretary, any position supporting the Warfighter mission was subject to a background check, and all positions at FRCSE, including Complainant's supported the mission. All employees who had access to security information at FRCSE were subjected to the same treatment regarding the background check. The record contains evidence of three non-black, male, employees who also were subjected to undergoing security background checks as a result of the new mandate, and contains evidence establishing that during the time relevant to this complaint, three employees, other than Complainant, were removed for failing to pass the security background check. These three employees included two white males and one white female, none of whom had a record of prior EEO activity.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, however, by order dated December 10, 2013 the AJ dismissed the hearing request as a sanction under the authority of 29 C.F.R. 1614.109(b), because Complainant had failed to comply with the AJ's previously issued orders. The AJ remanded the case back to the Agency for the issuance of a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that it subjected her to discrimination as alleged. Specifically, the Agency determined that management articulated a legitimate, nondiscriminatory reason for her removal, and she failed to establish pretext.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
AJ Remand
We first address Complainant's contentions on appeal, namely, whether the AJ abused her discretion when she dismissed Complainant's hearing as a sanction for failure to follow an AJ order. The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. � 1614.109 et seq.; EEO MD-110, Chap, 7, � III(D), An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treas., EEOC Appeal No. 07A00015 (July 17, 2001).
More specifically, our regulations provide that where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. An AJ must first issue a Notice to Show Cause to the non-complying party. EEO MD-110, Chap. 7, � III(D), n.6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000). This was done in this case.
The Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree, EEOC Appeal No. 07A00015; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The purpose of a sanction is to deter the underlying conduct of the non-complying party. See Barbour v. U. S. Postal Serv., EEOC Appeal No. 07A30133 (Jun. 16, 2005). The factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Gray, EEOC Appeal No. 07A50030; Voysest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005).
In this case, the AJ sanctioned Complainant by dismissing the underlying hearing request when Complainant failed to comply, in relevant part, with the AJ's October 30, 2013, Order on Motion to Compel Discovery. The Order stated in relevant part that:
"The Agency stated the Complainant refused to respond to several discovery requests for tax return and W-2 information, unemployment claims, and information related to harm allegedly suffered."
"The Motion is granted. Regardless of settlement negotiations, the Complainant is seeking compensatory damages and lost wages in this case and, as such, the documents requested by the Agency are reasonably calculated to lead to discovery of admissible evidence. The Complainant is hereby ordered to produce the documents requested to be received by the Agency no later than November 12, 2013. Failure to do so will result is sanctions, including, but not limited to, an adverse inference in favor of the Agency, or dismissal of the request for hearing."
The record reflects that Complainant did not produce any of the ordered documents until November 25, 2013. Not only were the documents untimely, they did not include the information requested. Instead, Complainant provided IRS Form 4506-T which would require the Agency to mail that form to the IRS in order to obtain the documents. These facts coupled with the broad authority the Commission grants to its AJs as to how hearings are conducted require a finding that the AJ did not abuse her discretion when she dismissed Complainant's hearing request for failure to follow an AJ order. See Complainant v. Dep't of Commerce, EEOC Appeal No. 0120140776 (Feb. 13, 2015).
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially 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, 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, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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).
Upon review, we find that the Agency correctly held that Complainant did not establish that the Agency subjected him to disparate treatment on the bases of race, sex, and reprisal for prior EEO activity when she was required to undergo a background check to obtain a security clearance, and ultimately terminated for failing to obtain the clearance. Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for requiring Complainant to undergo a security background check to obtain a security clearance and her ultimate removal from service. As articulated in the "background" section above, Complainant's supervisory chain acted in accordance with a mandate by the Navy Secretary that security clearance was required for any position supporting the Warfighter mission. Complainant's position, along with every position in the FRCSE fell into this category and she was therefore required to obtain the necessary security clearance. We find that Complainant failed to demonstrate that any conduct on the part of the Agency with respect to the requirements surrounding the background check and clearance process, or her ultimate removal from service were based on discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency's FAD properly found that Complainant failed to demonstrate that she was subjected to discrimination when on June 10, 2010, she was removed from her position for failing to successfully obtain a security clearance or eligibility to be assigned to a sensitive position; the Agency's final decision is AFFIRMED.
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).
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
_11/23/16_____________
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.
2 We note that Complainant filed the instant appeal prematurely on February 26, 2014 prior to the Agency's issuance of the FAD. While the appeal was premature in February 2014, we find that the matter is ripe for disposition at this time. The instant decision will address the AJ's dismissal of Complainant's hearing request, as well as, the Agency's findings in its FAD.
3 The Commission notes that age was accepted as a basis for the claim in the initial complaint; however, Complainant retracted age as a basis. The complaint was processed on the three basis articulated in the statement of "Issue Presented."
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