Porter P.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120140996 (E.E.O.C. Jan. 29, 2016)

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

Porter P.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120140996

Hearing No. 410-2012-00325X

Agency No. HS-ICE-01394-2011

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s December 12, 2013 final order 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. For the following reasons, the
Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Special Agent at
the Agency’s Federal Law Enforcement Center in Glynco, Georgia. Complainant has been in
this position since April 24, 2011. Complainant previously worked as a Special Agent in
Springfield, Illinois. On May 10, 2010, Complainant filed an EEO complaint against the
Agency alleging discrimination and a hostile work environment. In December 2010,
Complainant and the Agency entered into mediation to attempt to resolve the matter.
Complainant and the Agency subsequently entered into a settlement agreement in March 2011,
resolving the complaint.

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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On February 7, 2011, Complainant’s supervisor (S1) emailed Complainant regarding
deficiencies in a case that needed to be completed. That same day, Complainant responded to
the email and included a Treasury Enforcement Communication System (TECS) document that
contained sensitive information about an open investigation and S1’s social security number.
Complainant copied his second-level supervisor (S2), the Special Agent-in-Charge (SAIC), and
his attorney in the email. Complainant sent the email to his attorney for use during mediation.

On February 9, 2011, the Agency’s attorney sent an email to Complainant’s attorney notifying
her that the email sent by Complainant was an unauthorized disclosure of law enforcement
sensitive information. Additionally, the Agency’s attorney informed Complainant’s attorney
that the matter had been reported to the Agency’s Office of Professional Responsibility in
accordance with the Agency’s policy for reporting employee misconduct.

On May 17, 2011, Complainant was interviewed as part of the Agency’s investigation into the
unauthorized release of TECS information. Complainant admitted in a written statement that
he had not been given authorization to release the sensitive information to his personal attorney
and that he was aware that the unauthorized release of TECS information to outside parties
constituted a possible violation of Agency policies and laws.

On August 22, 2011, the Agency completed its internal investigation of the matter and found
that the charge was substantiated. On February 28, 2012, the Agency proposed to suspend
Complainant for three days for the unauthorized disclosure of TECS information.
Complainant responded to the suspension proposal and confirmed that he sent the TECS
document to his attorney to support his allegations during the mediation session. Based on the
circumstances of the disclosure, the Agency decided that Complainant would only be orally
counseled regarding the disclosure of personally identifiable information to prohibited sources.

On October 11, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him in reprisal for prior protected EEO activity when, on May 3, 2011,
Complainant became aware that his former supervisor had initiated a groundless Internal
Affairs investigation against him.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on September 12, 2013, and issued a decision on
November 21, 2013.2

In his decision, the AJ determined that Complainant failed to establish a prima facie case of
reprisal. Specifically, the AJ found that the internal investigation into a prohibited and
unauthorized act in violation of the Agency’s policy and the Privacy Act, the subsequent

2 The AJ initially issued an Order Entering Judgment on November 14, 2013; however, he
issued a revised Order Entering Judgment on November 21, 2013.
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proposed suspension, and the oral counseling were not injurious to Complainant. The AJ
noted that Complainant had not been subjected to any disciplinary action. Additionally, the AJ
found that the Agency’s actions in response to Complainant’s unauthorized disclosure of the
TECS information would not deter a reasonable employee from participating in the EEO
process. Finally, the AJ determined that Complainant failed to show a causal connection
between the Agency’s actions and his protected EEO activity. As a result, the AJ found that
Complainant failed to establish a prima facie case of reprisal and, therefore, failed to show that
he was subjected to reprisal. The Agency subsequently issued a final order fully implementing
the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant points out numerous errors in the AJ’s initial decision which was later
revised. Complainant argues that his release of the TECS printout to his attorney was
necessary and warranted to support his allegations during mediation. Complainant further
contends that the TECS document was falsified and created by S1. Complainant claims that S1
used his name and social security number in creating the TECS report in violation of his rights,
and that he intended to use the document to prove that the Agency was retaliating against him.
Complainant notes that the deciding official considered Complainant’s response to the proposed
suspension and determined that only a verbal counseling regarding personally identifiable
information was necessary. Accordingly, Complainant requests that the Commission reverse
the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

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ANALYSIS AND FINDINGS

Disparate Treatment/Reprisal

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). 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. Corp. 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, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) he engaged in protected EEO 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 his protected activity and the adverse treatment. Whitmire v. Dep't of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review, the Commission finds substantial evidence supports the AJ's decision.
Assuming arguendo that Complainant established a prima facie case of reprisal, substantial
record evidence shows that Agency officials articulated legitimate, non-retaliatory reasons for
its actions. Specifically, Agency management contacted the Agency’s Office of Professional
Responsibility after Complainant disclosed the TECS document to a third party (his personal
attorney). Hr’g Tr., at 82-83, 118-19; ROI, Ex. 7, at 1. The TECS document contained
sensitive law enforcement information and other personal identifiable information, and its
disclosure to a third, non-law enforcement party violated Agency policy. ROI, Ex. 7, at 2;
ROI, Ex. 8, at 2. The Office of Professional Responsibility referred the matter to a fact-finder
who began an investigation. Hr’g Tr., at 121. Ultimately, due to mitigating circumstances,
Complainant was verbally counseled regarding the handling of personally identifiable
information rather than disciplined. Id. at 34, 122.

The Commission finds that there is substantial evidence in the record to support that
Complainant did not establish that the Agency’s explanation for its actions was a pretext for
reprisal. The record and facts gleaned at the hearing fail to disclose any evidence purporting
to show the Agency's actions were pretext for retaliatory animus. Thus, after reviewing the
record and considering arguments on appeal, the Commission finds that the AJ made
reasonable credibility determinations, which are not contradicted by objective evidence, and his
factual findings are supported by substantial evidence. Therefore, the Commission finds that
Complainant has not established that he was subjected to reprisal as alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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
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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

January 29, 2016
Date