0120140247
08-25-2016
Kendall C.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kendall C.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120140247
Agency No. FBI201200307
DECISION
On October 29, 2013, Complainant filed an appeal from the Agency's September 24, 2013, final decision concerning his 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.
ISSUES PRESENTED
Whether the FAD properly found that Complainant was not subjected to discrimination in reprisal for prior EEO activity when: (1) on or about June 22, 2012, he was placed in a non-pay status; (2) on August 7, 2012, he was notified that an internal investigation was being initiated against him; and (3) on August 22, 2012, he was notified that the job offer for the Computer Scientist position, Cyber Division, was being rescinded due to his current employment status.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist - Forensic Examiner (ITSFE) at the Agency's Cyber Division facility in Washington, D.C. The following facts are set forth in the Agency's Final Decision (FAD): Complainant stated that on July 11, 2012, he advised the Unit Chief that he was displeased with the Supervisory Management and Program Analyst's (SMPA) decision to deny approval of Complainant's "examinations towards certification," after he had been a trainee for almost three years. Complainant alleges that he advised the Unit Chief that he was going to file an EEO complaint against the SMPA for hindering this process.
On June 22, 2012, Complainant was placed in a non-pay status. On or around July 11, 2012, the Unit Chief, Acting Supervisor, and one co-worker contacted the Supervisory Special Agent to advise that they were concerned for their safety. This concern resulted from a series of "printouts to an automotive web site" allegedly posted by Complainant. The Supervisory Special Agent reviewed over one thousand postings Complainant made and determined there was no security threat.
On or around July 20, 2012, two Supervisory Special Agents advised Complainant that they were investigating allegations that he had misused a government computer, disclosed sensitive information without authorization, and conducted himself unprofessionally outside the workplace. These allegations were based on postings allegedly made by Complainant to an automotive website from an Agency computer. Complainant acknowledged "de minimus" use of the Agency computer to post on the website during and after work hours. Additionally, Complainant states that he posted information to a troubleshooting website that required subscription access, but contends that he had supervisory permission to do so.
On or around July 21, 2012, Complainant was advised that he was suspended from work immediately without pay and that he was not to return to work until instructed to do so. Complainant's security badge, credentials, Blackberry, and Agency-issued laptop were confiscated, and he was issued a letter dated July 19, 2012, from the Security Division advising that his security clearance was suspended. On or around July 25, 2012, after reviewing the allegations and the specific information provided in support of these allegations, the Acting Chief of the Internal Investigations Section authorized the initiation of an internal investigation into Complainant's actions.
Complainant was scheduled to begin a Computer Scientist position with the Agency on October 1, 2012, which he was offered on or around June 22, 2012. The Supervisory Human Resources Specialist states that, on August 8, 2012, a temporary Human Resources staff member emailed a request to rescind Complainant's conditional job offer because his security clearance had been suspended. A top secret clearance was required for the Computer Scientist position, and because Complainant's had been suspended he was not eligible for the job, or any other position at the Agency. On or around August 22, 2012, Complainant was informed that the job offer had been rescinded based on his "current employment status." On or around November 19, 2012, Complainant began working in the Washington Field Office after his top secret security clearance was reinstated.
On October 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of "Issues Presented" above. 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). In accordance with Complainant's request, the Agency issued the FAD pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that it subjected him to discrimination as alleged.
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
At the outset, the Commission notes that several of Complainant's briefs were untimely. Pursuant to 29 C.F.R. � 1614.403(d) any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. The record reveals that, in addition to the statement in support of her appeal filed with his October 29, 2013 notice of appeal, Complainant submitted 16 additional statements ranging in dates from January 12, 2015 to June 2015. The record is void of an adequate justification for the delay. Therefore, the Commission declines to consider Complainant's statements that were submitted beyond the November 28, 2013 deadline, as they were untimely filed pursuant to 29 C.F.R. � 1614.403(d).
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 802 n.13.
Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in protected 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 the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Protected activity consists of opposition to discrimination or participation in the statutory complaint process. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at Charge-Processing Outline (May 20, 1998) (Compliance Manual). An example of opposition includes complaining to anyone about alleged discrimination against oneself or others. Id. at 8-II.B.2. A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination. Id. If an individual makes a broad or ambiguous complaint of unfair treatment, such a protest is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination. Id.
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 prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., 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 an agency treated an employee 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 an agency subjected the employee's work performance to heightened scrutiny after he engaged in protected activity. Id.
Upon review, we find that the Agency correctly held that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of reprisal for prior protected EEO activity when it placed him in a non-pay status; launched an internal investigation against him based on his activity on an internet site; and rescinded the conditional job offer.
The Commission notes that Complainant was placed in a non-pay status on June 22, 2012, approximately one month before he advised the Unit Chief that he was displeased with the refusal to approve his certification and that he was going to file an EEO complaint as a result. Regarding claims 2 and 3, we find that the Agency articulated a legitimate, non-discriminatory reason for its decisions both to investigate Complainant's computer activity, and to rescind his conditional job offer. We find that Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
Specifically, the Agency determined that it was appropriate to open an investigation on Complainant because he had posted sensitive information about Agency training, insults about Agency employees and the President, and racial and sexist remarks on a website using his Agency issued computer during work hours. Complainant acknowledged engaging in the behavior which Agency personnel found to be inappropriate. As a result of opening the investigation, Complainant's top secret security clearance was suspended. Without a clearance, Complainant was unable to access Agency facilities and was ineligible for any other position within the Agency. In sum, the record indicates that the actions taken against Complainant were based on management's belief that Complainant engaged in misconduct and unprofessional behavior, not because he engaged in protected EEO activity. All additional actions taken by the Agency flowed from Complainant being subjected to an internal investigation.
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 he was subjected to discrimination as alleged; 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
___8/25/16_______________
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.
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