Philip H.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Oct 26, 2018

0120172239 (E.E.O.C. Oct. 26, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Philip H.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120172239

Hearing No. 570-2014-00452X

Agency Nos. HSFEMA001162013, HSFEMA006862013

DECISION

On June 13, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 23, 2017, final order concerning his equal employment opportunity (EEO) complaints
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS-
13, at the Agency’s Office of the Chief Financial Officer facility in Washington, DC.

On November 16, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:

1. On or about September 6, 2012, the Agency terminated Complainant's
employment during his probationary period;

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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2. On or about January 24, 2013, the Agency failed to qualify Complainant for the
position of Supervisory Accountant, under vacancy announcement number
MG2012T0433-BL-778372MP;
3. On or about April 30, 2013, Complainant learned that the Department of the Navy
rescinded a tentative job offer made to Complainant after learning that
Complainant was terminated due to "inappropriate conduct towards others";
4. On or about May 19, 2013, Complainant learned that the information provided by
the Agency during a reference check led to his removal from consideration for
four Supervisory Auditor positions with the Defense Contract Audit Agency
(DCAA):
5. On or about August 13, 2013, Complainant became aware that the Agency
accused him of the theft of government property for not returning a government
owned laptop computer after his termination from employment.

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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 24, 2016
motion for a decision without a hearing and issued a decision without a hearing on May 31,
2017. Specifically, the AJ found that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. With regard to Complainant’s termination, the AJ found that Complainant
had been found to have engaged in sexual harassment against a coworker. With regard to the
denial of the Agency Supervisory Accountant position, the AJ found that the position was open
to “current employees only” and at the time of his application, Complainant was no longer an
employee. With regard to the denials of positions with the Navy and DCAA, the AJ found that
these agencies did not wish to hire a candidate who had recently been terminated and that such
behavior on the Agency’s part was reasonable and not indicative of discrimination or reprisal.
Finally, with regard to the final claim, the AJ found that Complainant had not returned a laptop
after his removal, thus initiating an investigation, and that once he returned it, the investigation
ended.

The AJ next found that Complainant failed to establish that the Agency’s articulated reasons for
its actions were pretextual. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure.
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The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate.

Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact.

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate
issue of whether complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
complainant established his prima facie case of discrimination.

We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
With regard to claim 1, the September 6, 2012 Removal Notice stated, “On July 6, 2012, one of
your co-workers alleged you sexually harassed her in the workplace. As a result of the
allegations, FEMA's Office of Chief Security Officer conducted an investigation. The
investigation substantiated the allegation of sexual harassment.”
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With regard to claim 2, the job posting stated that the position was open to “current FEMA status
candidates only.” Report of Investigation (ROI), Exhibit G-18. With regard to claims 3 and 4, we
note initially that to the extent Complainant is alleging that the Department of the Navy’s
rescission of the tentative job offer and the DCAA’s decision to remove Complainant’s name
from consideration for various positions were discriminatory, his complaint should be filed with
that Agency, not with DHS/FEMA. To the extent Complainant is alleging that the Agency
discriminated and/or retaliated against him by providing unfavorable references that interfered
with his hiring by the Navy, the Navy’s rescission letter explains that:

On your Declaration for Federal Employment (form 306), you indicated “yes” on
question 12 which asked whether you were fired from any job for any reason, quit
in lieu of termination, departed because of specific problems, or debarred [sic].
You further indicated that you had been subjected to a RIF in June of 2011 and
"not granted permanent status as a probationary employee in September of 2012.
Your most recent SF-50 indicated you were terminated from the Federal
Emergency Management Agency (FEMA) during the probationary period in
September 2012. A reference check with FEMA indicated one of the bases for
termination was inappropriate conduct towards others. Accordingly, the hiring
process was discontinued and the tentative offer was rescinded.

ROI, Exhibit G22.

This shows that the Agency merely indicated in Complainant’s personnel records that he had
been terminated during his probationary period for inappropriate conduct. Emails from the
DCAA Human Resources Specialist show that Complainant’s applications were removed form
consideration after learning that Complainant had been separated from the Agency. See ROI,
Exhibit G25. Having articulated legitimate, nondiscriminatory reasons for the Agency’s actions,
the burden shifts back to the Complainant to establish, by a preponderance of the evidence, that
the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks;
Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has
failed to meet this burden.

With regard to claim 1, Complainant maintains that the claims of sexual harassment against him
were “trumped up.” He alleges that a co-worker and Team Lead (CW1: male) had been sexually
harassing him on an ongoing basis and that despite Complainant’s complaints to management,
nothing was done. Complainant further alleges that CW1 retaliated by falsely reporting to
Complainant’s supervisor (S1: female) that Complainant had harassed an intern. In addition,
Complainant maintains that another co-worker (CW2: female) who accused Complainant of
harassment against her only did so because she had been rebuffed by Complainant after seeking
a romantic relationship with him. Complainant averred that CW2 knew of CW1’s allegations
against Complainant regarding the intern and “conspired” with CW1 “to justify my termination.”

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We note, however, that even assuming arguendo that CWs 1&2 lied to management by
fabricating allegations against Complainant, the record shows that it was S1 who signed the
removal notice, based on an internal investigation that, according to S1, “substantiate[d] the
allegations” of harassment by Complainant. Complainant has not shown that S1 harbored any
animus towards Complainant’s sex.

With regard to claim 2, Complainant argues that “the Agency violated the law in this instant
matter under the provisions of 5 U.S.C. § 3330((a) and 5 C.F.R § 1208.25(a).” We note in this
regard, however, that the enforcement of such laws is not within the jurisdiction of this
Commission. Complainant next argues that despite the fact that the position in question was
open to current Agency employees only, he applied under the Veterans Employment Opportunity
Act (VEOA) that “allows veterans to apply to announcements that are only open to so called
‘status’ candidates, which means "current competitive service employees." The Agency points
out that the first page of the position notice states that the position is open to current employee
only. We find, however, that the issue of whether the position was also available to outside
veterans applying under the VEOA is not a material issue in dispute because, even assuming
arguendo that Complainant should have been considered under that statute, he has not shown that
the Agency considered other veterans who applied from outside the Agency under the same
statute, and hence he cannot show that he was treated differently.

With regard to claims 3 and 4, Complainant maintains that the Agency retaliated against him for
filing the instant complaint but we note he has not shown that any Agency employee responsible
for providing a reference check to the Navy or DCAA knew about his EEO activity. Nor has he
shown, with regard to other similarly situated employees terminated during their probationary
periods, that the Agency omitted from their personnel records the fact that they were terminated,
as opposed to leaving voluntarily. For the above reasons we find that Complainant has not met
his burden of establishing, by a preponderance of the evidence, that the Agency’s articulated
reasons for its actions are pretextual.

With regard to claim 5, we note that in considering whether the Agency’s accusation that he had
stolen a laptop constitutes harassment, the Commission notes that in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v.
Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive
that it results in an alteration of the conditions of the complainant’s employment. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc.
at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on the statutorily
protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his
work performance and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer.
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See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999)
(citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Furthermore, in assessing whether the complainant has set forth an actionable claim of
harassment, the conduct at issue must be viewed in the context of the totality of the
circumstances, considering, inter alia, the nature and frequency of offensive encounters and the
span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy
Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by
the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such
conduct “must be both objectively and subjectively offensive, [such] that a reasonable person
would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did
perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998);
Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).

Following a review of the record we find that Complainant has not shown that the Agency’s
action either involved or was based on his protected bases or his EEO activity. Nor has he shown
that the action complained of was sufficiently severe as to create a hostile work environment,
especially since the investigation ended once the laptop was returned. We further note in this
regard that by the time of the accusation about the theft of the laptop, Complainant was no longer
working at the Agency and hence cannot show that the Agency’s action created a hostile work
environment.

On appeal, Complainant argues that the record was not fully developed and that he was not
afforded a fair and reasonable opportunity to explain and supplement the record. We note,
however, that Complainant does not specify what is supposedly lacking. As the Agency points
out in its appellate brief:

The parties engaged in extensive discovery. Specifically, [Complainant]
submitted three different sets of discovery requests which contained eighteen (18)
Requests for Admission, nineteen (19) Interrogatories, and twenty-nine (29)
Requests for Production of Documents. The Agency responded to each set of
discovery, and provided 5 supplemental responses. The Agency propounded one
set of discovery requests, which contained twenty-four (24) Interrogatories,
twenty-five (25) Requests for Production of Documents, and twenty-three (23)
Requests for Admission, to which Appellant responded. Further, Appellant
deposed three witnesses, . . . . Further, there is no indication, besides
[Complainant’s] conclusory statements, that the record is inadequate. Quite the
opposite, the record in the instant case contains an EEO Report of Investigation; a
Report of Investigation conducted by FIID; depositions of [S1 and other Agency
employees] and Complainant; [and] FEMA policies, and documents relevant to
the complaint at issue.
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The investigations, in combination with the discovery conducted in this case,
resulted in a cache of evidence; as such, the record was adequately developed and
poised for summary disposition. (Citations omitted.)

We note further that AJs have broad discretion in the conduct of hearings, including discovery,
and the determination of whether to admit evidence, issue sanctions or permit or compel the
testimony of witnesses. See 29 C.F.R. § 1614. 109. Complainant has not met his burden of
establishing that the AJ abused her discretion in this regard. With regard to Complainant’s
remaining arguments on appeal to the effect that the AJ misquoted one of the witnesses, and the
AJ’s statement that Complainant “lied” to the Department of the Navy, we find that, even
assuming arguendo that the AJ erred as Complainant alleges, these amount to no more than
harmless errors that do not affect the ultimate outcome.

We therefore find that Complainant has not met his burden or establishing, by a preponderance
of the evidence, that the Agency’s articulated reasons for its actions were a pretext. Nor has he
otherwise shown that the Agency’s actions were based on sex or reprisal. Finally, we find that
Complainant has not shown the presence or a material issue of fact to warrant a hearing.

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 not shown that discrimination or
reprisal occurred, and we AFFIRM the final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
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Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

October 26, 2018
Date