0120141912
09-08-2016
Luis H.,1 Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Luis H.,1
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120141912
Agency No. 12-0177-AL
DECISION
On April 3, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from a final Agency decision (FAD) dated February 25, 2014, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Federal Agent (Nuclear Material Courier) at the Agency's Office of Secure Transportation within its National Nuclear Security Administration in Amarillo, Texas.
On December 27, 2012, Complainant filed an EEO complaint, as amended, alleging that -
1. He was discriminated against based on his age (54 & 55) and race (Hispanic) resulting in a hostile work environment when:
a. On September 6, 2012, his first line supervisor (S1) accused him of being late for work and falsifying a sign-in sheet leading both to his suspension on September 7, 2012, and temporary removal from the Human Reliability Program (HRP) on September 10, 2012, thereby placing him in paid administrative leave.
b. On October 16, 2012, he was required to meet with Office of Secure Transportation Contract Psychologist 1, who was hostile and unprofessional toward him. He has not received information on the management action taken in response to his October 22, 2012, letters of complaint about Contract Psychologist 1's above behavior and Contract Psychologist 2's hostile behavior in his annual HRP psychological evaluation on June 6, 2012.
c. On January 4, 2013, he learned that information about his EEO complaint was disclosed to his co-worker who was a Convoy Commander when he said "as long as you continue your EEO complaint, you will not return to duty."
d. On February 4, 2013, based on a conversation with HRP Management Official 1, he believed she intentionally delayed the review of his psychiatric report, which impacted the final decision on his return to duty.
2. He was discriminated against on the above bases and reprisal for prior EEO activity under the ADEA and Title VII (instant complaint) when:
f. On April 4, 2013, he was issued a Letter of Reprimand by his second line supervisor; and
g. On July 11, 2013, he received a letter stating that he did not meet the criteria for participation in the HRP and therefore was not suitable for nuclear explosive/HRP duties.2
According to the FAD, Complainant did not request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) following his receipt of the Report of Investigation. Thereafter, pursuant to 29 C.F.R. � 1614.110(b), the Agency issued a FAD. The Agency found no discrimination.
Complainant was responsible for the safe and secure transportation of classified and/or hazardous materials including nuclear weapons, components, test assemblies, and strategic quantities of weapons-grade special nuclear materials of significant importance to national security. His position required a "Q" security clearance, which was managed through HRP.
The HRP program requires HRP employees and supervisors to report any observed or reported behavior or condition of another HRP certified individual that could indicate a reliability concern, including behaviors and conditions listed in 10 C.F.R. 712.13(c). Report of Investigation (ROI), 270. This regulation lists, among other things, indications of deceitful or delinquent behavior. ROI, 254.
On September 6, 2012, S1 noted that Complainant signed in as arriving at work at 7:45 AM, but he saw him arrive later. S1 questioned Complainant, who denied arriving later. By letter dated September 7, 2012, S1 contacted HRP Management Official 1, recommending that Complainant be removed from HRP duties until a review of his reliability could be conducted - writing his behavior as deceitful. S1 cited various behaviors which lead him to believe Complainant tried to deceive him about his arrival time. ROI, 305. By memorandum dated September 10, 2012, S1 formally notified Complainant that effective September 7, 2012, he was temporarily removed from HRP. ROI, 308.
Pursuant to the HRP review process, Complainant was evaluated by Contract Psychologist 1 on September 14, 2012, with a follow-up evaluation on October 16, 2012. On October 22, 2012, Complainant wrote two letters of complaint that Contract Psychologist 1 was hostile to him in their second appointment and Contract Psychologist 2 was hostile to him in his annual HRP psychological evaluation on June 6, 2012. ROI, 340 - 342. In reaction to his letters of complaint, the Office of Secure Transportation Internal Affairs Officer conducted an investigation. The Internal Affairs Officer concluded that he could not substantiate Complainant's complaint against Contract Psychologist 2, and found no evidence to support his contention that Contract Psychologist 1 retaliated against him for complaining about Contract Psychologist 2. According to the report, the following occurred. Contract Psychologist 2 described their interaction as more benign than Complainant, saying he became less cooperative when asked about issues he did not want to discuss, requiring him to take a more assertive interview style to conduct a proper evaluation. Contract Psychologist 1 said that he asked Complainant to discuss information about his behavior and integrity documented by S1, and pursued other questioning on integrity concerns. ROI, 349 - 350.
The senior federal officer for Complainant's office stated that he had an Agency attorney contact Complainant to notify him that the above investigation was being conducted, but Complainant may not be told the results. ROI, 210 - 211.
On January 29, 2013, Contract Psychologist 2 issued his report, on which the HRP Site Occupational Medical Director concurred, not recommending Complainant for HRP Certification. In summary, he found indications of deceitful behavior, irresponsibility in performing assigned duties, failure to comply with work directives, and violation of safety or security procedures. This stemmed from a number of incidents over a period of time, and was backed up with documentation. ROI, 491 - 509.
On January 4, 2013, Complainant met with an Agency Convoy Commander to sign a medical determination form for medication he was taking. He wrote that Complainant said he had notebooks full of evidence relevant to his complaints and should be back to work in a week or two. The Convoy Commander denied telling Complainant that as long as he continued his EEO complaint he would not return to duty. He said that instead, he told Complainant that previously he was removed from HRP due to a false accusation, and not to get into a hurry about returning until they get all their issues resolved. ROI, 216.
Regarding issue 1.d., HRP Management Official 1 explained that after the above January 2013 HRP medical evaluation report, the next step was for her to review and prepare the final report with a recommendation. ROI, 192. She stated that when Complainant called about the status of his case, she explained that she had one other temporary removal status case to review before his and was about to be out of the office for a week, so it would take about a month. She was also called for jury duty. ROI, 192. HRP Management Official 1 wrote that she completed her recommendation as timely as possible - March 27, 2013. The record shows a completed recommendation by her, which received the concurrence of the HRP Certifying Official on March 27, 2013, as well as an Evaluative Report by her dated May 31, 2013. ROI, 376 - 387.
On February 21, 2013, S1 issued Complainant a reprimand stemming from the September 6, 2012, incident, charging Complainant with conduct unbecoming a nuclear materials courier, and failure to follow procedures. He explained in detail the reasons for the delay in Complainant receiving the reprimand. ROI, 186.
Consistent with the recommendations of Contract Psychologist 1 and HRP Management Official 1, the senior federal officer for Complainant's office issued a letter to Complainant dated June 5, 2013, finding that he met the criteria of 10 C.F.R. � 712.13(c) - indications of deceitful or delinquent behavior, failure to comply with work directives, and violation of safety procedures.
In finding no discrimination, the Agency cited to management's explanations for the actions taken, and found Complainant did not prove pretext. It also found that Complainant was not harassed.
On appeal, Complainant generally argues that the Agency misused HRP.
ANALYSIS AND FINDINGS
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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has 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).
Complainant also alleges that he was subjected to harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) s/he is a member of a statutorily protected class; (2) s/he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
The Agency articulated legitimate, nondiscriminatory reasons for the actions it took - S1 accused Complainant of being late and falsifying a sign-in sheet based on his observations and checking Complainant's explanation against when he swiped into the building. Because he believed Complainant was deceitful, S1 suspended Complainant and temporarily removed him from HRP. The Agency, in essence, explained that what Complainant perceived as hostility toward him by Psychologists 1 and 2 was them doing their job with aggressive questioning, and that Psychologist 2 was more benign in his behavior than Complainant claimed. Also, while Complainant was not given the results of the investigation into Psychologists 1 and 2's behavior, he was notified of the existence thereof. The Convoy Commander denied telling Complainant that as long as he continued his EEO complaint he would not return to duty. The Agency explained that HRP Management Official 1 completed her recommendation on Complainant's HRP case as timely as possible. S1 explained that he issued the letter of reprimand, in consultation with Human Resources, because it was warranted. The Agency explained that it removed Complainant from HRP, resulting in the denial of his "Q" security clearance, because of indications of deceitful behavior, failure to comply with work directives, and violation of safety procedures.
Complainant has failed to show that the Agency's explanations were pretext to mask discrimination. Also, while Complainant disagrees with the Agency's assessments of his behavior, he has not shown that the assessments were motivated by discrimination - the record contained much documentation backing up the Agency's assessments. Further, the record does not show that the harassment complained of above was based on Complainant's protected classes.
The FAD 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
September 8, 2016
__________________
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 Complainant's position required "Q" security clearance, which was managed through HRP. On May 1, 2014, the Agency removed Complainant for failure to maintain his HRP, a condition of his employment. Complainant filed an appeal with the Merit Systems Protection Board (MSPB), which affirmed his removal. Regarding Complainant's discrimination and retaliation claims, the MSPB determined it had no authority to review them when raised in connection with an adverse action based on the revocation of a security clearance. Complainant filed a petition with the Commission, which was denied. We reasoned that because the MSPB did not make a determination on Complainant's allegations of discrimination, we had nothing to review. EEOC Petition No. 0320160025 (May 3, 2016).
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