[Redacted], Alene S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 23, 2021

Appeal No. 2021003100 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alene S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021003100 Hearing No. 570-2020-00372X Agency No. FBI-2019-00141 DECISION 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 April 6, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Special Agent, GS-13, at the Agency’s office in Baltimore, Maryland. 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. 2021003100 2 On April 24, 2019, Complainant filed a formal EEO complaint claiming that that the Agency discriminated against based on reprisal for prior protected EEO activity2 when on December 14, 2018, Complainant was terminated from her employment with the Agency.3 Following the completion of the report of investigation of the accepted claims, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on February 11, 2021, the AJ issued a notice of proposed summary judgment in favor of the Agency. After receiving responses from both the Agency and Complainant, the AJ issued a decision by summary judgment in favor of the Agency. On April 6, 2021, the Agency issued a final order implementing the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2 Complainant explained on appeal that she has filed prior EEO complaints. Specifically, Complainant stated that she filed her first complaint in 2011 which is currently pending appeal before the U.S. Court of Appeals for the District of Columbia. Complainant also filed an EEO complaint on April 29, 2016, alleging sexual harassment and discrimination, and another, on April 3, 2018, alleging unlawful retaliation. 3 Complainant’s formal complaint included another matter where Complainant alleged that she was subjected to retaliation when, in November 2018, in response to her written appeal, she received a letter from the Security Division advising her that the decision to rescind her Top Security Clearance had been upheld. The Agency dismissed this claim, finding that the Commission does not have jurisdiction to review an Agency’s determination with regard to either the substance of the security clearance decisions or the validity of the security clearance requirement itself. See Section 703(g) of the Civil Rights Act of 1964, as amended, EEOC Notice No N-915-041 (May 1, 1989). 2021003100 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our independent review of the record indicates that the AJ correctly determined that the Agency articulated legitimate, non-discriminatory reasons for Complainant’s termination. It is undisputed that Complainant had filed several previous EEO complaints and a civil action alleging discrimination against her then-supervisors between 2011 and 2013, when she was assigned to the Agency’s Headquarters. In July 2014, Complainant was reassigned to the Agency’s Baltimore Field Office. Between July 2014 and March 2015, Complainant and an FBI Task Force Officer (“TFO”) exchanged approximately 2,705 text messages utilizing Complainant’s Agency-issued cell phone. The language of the text messages indicated a romantic and sexual relationship. Complainant’s supervisor was unaware of her personal relationship with the TFO. On January 6, 2015, the TFO was involved in a serious accident in an Agency vehicle. Complainant’s supervisor assigned her to investigate whether the TFO was driving within the scope of his employment at the time of the accident. 2021003100 4 Complainant conducted the investigation and determined that the TFO was acting within the scope of his employment at the time of the accident. She still did not inform her supervisor of her personal relationship with the TFO or attempt to recuse herself from the investigation. Believing there were discrepancies in Complainant’s investigation, an additional investigation was conducted by other agents that concluded that the TFO was not acting within the scope of his employment at the time of the accident. Specifically, the investigation revealed that the TFO had been at Complainant’s home for personal reasons prior to the accident, and the reasons provided for traveling that day were not accurate. As a result, an administrative inquiry was conducted concerning Complainant’s investigation of the TFO's accident that concluded that her personal involvement with the TFO compromised her professional judgment and caused her to perform an inadequate and deficient investigation, which led to the indefensible conclusion that the TFO was acting within the scope of his employment. The administrative inquiry also determined that Complainant misused her Agency- issued cell phone by exchanging over 2,700 text messages of a sexual and romantic nature with the TFO. The administrative inquiry concluded that Complainant lacked candor when she failed to be forthright about her affair with the TFO and the nature of his visit to her home just prior to the accident, and that she lacked candor under oath when she intentionally and significantly understated the duration of her relationship with the TFO. Based on these findings, Agency management initially proposed Complainant’s termination in December 2017. However, after an internal administrative appeal process, on February 9, 2018, a decision was made to suspend Complainant from duty without pay for 60 days rather than terminate her. However, at the time she was notified of her suspension, she was also advised that the results of the administrative inquiry would be shared with the Security Division as the misconduct could impact her retention of a top-secret security clearance.4 On March 6, 2018, after a review of Complainant’s misconduct, specifically the misuse of her cell phone, and her lack of candor and untruthfulness, the Security Division found just cause to revoke Complainant’s top-secret security clearance. Complainant filed an administrative appeal of the Security Division’s revocation decision. On November 19, 2018, her appeal was denied, and the revocation of her security clearance was upheld. The Executive Assistant Director (EAD) of Human Resources stated that he was notified in November 2018 of the Security Division’s decision to uphold the revocation of Complainant’s security clearance. 4 The February 9, 2018 Office of Professional Responsibility (OPR) decision suspending Complainant for sixty days specifically states that OPR would send a copy of the decision to the Security Division “as it may be relevant to [Complainant’s] retention of a Top-Secret Clearance.” 2021003100 5 It is undisputed that all Agency employees were required to obtain and maintain a top-secret security clearance as a condition of employment. After reviewing the documentation regarding the revocation of Complainant’s clearance, the EAD stated that he determined that the matter warranted Complainant’s removal from the Agency. The EAD emphasised that his determination to remove Complainant was based solely on Complainant’s revoked security clearance. Complainant asserted that everyone was aware that she had filed prior EEO complaints and she was perceived as a “problem child,” at the Agency. However, the EAD stated that he had not been made aware of Complainant’s prior activity until August 2019, when he was contacted by the EEO investigator. After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful retaliation for Complainant’s prior protected EEO activity. On appeal, Complainant, through counsel, argues, in pertinent part, that she was retaliated against when the Agency officials “reopened a previously closed investigation” by referring the matter to the Security Division, which resulted in the revocation of her security clearance and ultimately resulted in her termination from the Agency. However, we conclude that this issue was not accepted as part of her formal complaint and was untimely raised. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that claims of discrimination and unlawful retaliation must be brought to the attention of an EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, the record is clear that Complainant was notified in writing that the matter was being referred to the Security Division in February 2018, resulting in a decision to revoke her security clearance on March 6, 2018. However, Complainant did not initiate EEO counseling until December 18, 2018. Complainant attempts to argue that she did not receive the decision denying her administrative appeal of the security clearance revocation decision until November 2018, making her EEO counseling contact timely. We are unpersuaded. The Commission has long held that the utilization of agency internal appeals procedures, union grievances, and other alternative remedial processes does not toll the time limit for contacting an EEO counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful retaliation motivated the events at issue. Accordingly, the Agency's final order implementing the AJ's decision is AFFIRMED. 2021003100 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021003100 7 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 23, 2021 Date