[Redacted], Angel P., 1 Complainant,v.Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 16, 2020

Appeal No. 2019005257 (E.E.O.C. Dec. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angel P.,1 Complainant, v. Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency. Appeal No. 2019005257 Hearing No. 480-2018-00176X Agency No. DON17-00259-00269 DECISION On July 11, 2019, 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 14, 2019, 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 Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health Technician at the Agency’s Naval Medical Center facility in San Diego, California. On February 3, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Philippines), sex (male), and color (Black) when: 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. 2019005257 2 1. On April 20, 2016, Complainant’s security clearance and network access were revoked2; 2. On July 11, 2016, Complainant’s security clearance and network access were again revoked after being temporarily restored in May; 3. On July 19, 2016, Complainant was placed on administrative leave pending an investigation into allegations that Complainant had accessed a co-worker’s computer despite not having proper privileges; and 4. On November 1, 2016, Complainant was issued a notice of Proposed Removal.3 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. The AJ assigned to the case determined that the complaint did not warrant a hearing and issued a decision without a hearing on June 14, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant’s Suspension of Network Access Complainant was employed as a Health Technician at the Agency’s Naval Medical Center San Diego. On April 20, 2016, Complainant’s security clearance and network access were revoked after he was served an outstanding warrant related to a 2013 criminal charge of drinking under the influence. Based on the outstanding warrant, Command Security Manager, (CSM) (Filipino/Asian; brown, American origin; male) revoked Complainant’s security clearance and network access. On or about May 5, 2016, Complainant submitted documents to the CSM indicating that the warrant had been rescinded after Complainant paid his fines. 2 The Administrative Judge in this matter properly concluded that he did not have authority to address the substance of the security clearance suspension determination. However, we note that the complaint and this decision does not address the actual security clearance determination itself, but instead asserts discriminatory application of agency’s suspension of network access, pursuant to the security clearance determination. See, e.g., Complainant v. Dep’t of the Army, EEOC Appeal No. 01A41493 (July 29, 2004) (noting that the Commission has no authority to review a security clearance determination). 3 Complainant appealed his eventual termination to the Merit Systems Protection Board, which affirmed the agency’s termination decision. See Worrell v. Dep’t of the Navy, (Docket No. SF- 0752-17-0424-I-1, December 8, 2017). 2019005257 3 The CSM submitted a final report to the Department of Defense Central Adjudication Facility and emailed the cybersecurity team directing them to reinstate Complainant’s network access. On July 11, 2016, Complainant’s security clearance and network access were again revoked after being temporarily restored in May. The Human Resources Specialist (HRS) emailed the CSM and asked why Complainant still network access had while his security clearance was still suspended by the Department of Defense (DOD). In past experiences, DOD took up to a year to adjudicate security cases. CSM reviewed the Agency’s policies and determined that he had prematurely restored Complainant’s network access. Complainant’s access to the network was revoked subject to a decision from the Department of Defense. Complainant was also advised that future unauthorized network access could result in discipline, up to and including termination. Placement on Administrative Leave On July 19, 2016, Complainant was placed on administrative leave pending an investigation into new allegations that he had accessed a co-worker’s computer despite not having proper privileges. Another employee observed and reported that Complainant walked in, put his hand on an Agency’s computer’s mouse and the keyboard. The employee reported the incident. Proposed Removal On November 1, 2016, Complainant was issued a notice of Proposed Removal. Complainant admitted he entered a co-worker’s office. He denied using the computer after entering the office. Complainant was reassigned to another Supervisor. Upon reviewing Complainant’s entire record, the new Supervisor proposed Complainant’s removal. The Supervisor’s decision was based on the Complainant accessing a government computer after Complainant was issued a memorandum “telling him” not to access a government computer.” The Supervisor concluded that Complainant was not trustworthy. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Nov. 9, 1999) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review 2019005257 4 “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”). We determine whether the AJ appropriately issued the decision without a hearing. 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). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. To prevail in a disparate treatment claim, 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). Agency’s Legitimate Nondiscriminatory Reasons Here, Complainant alleges that he was subjected to discrimination with respect to his network access, placement on administrative leave, and proposed removal after his license was suspended for alcohol intoxication in 2016. The Agency initially reestablished his authority to use the Agency’s computers. 2019005257 5 Upon further review, Complainant was advised that he could not utilize the Agency’s computers based on his previous events. He was again prohibited from utilizing the Agency’s computers pending further action. Regardless of Complainant’s restrictions, Complainant again accessed the Agency’s computers without authority. The Agency again suspended Complainant’s access to his computer pending further action, including placement on administrative leave and ultimately proposed removal. Complainant contends that he was a victim of discrimination because a number of female employees in an Agency call center were allegedly suspended but were permitted to utilize their computers. A review of the evidence showed that the employees impacted by that action had appealed their suspensions to the MSPB. The MSPB reviewed the evidence surrounding the suspensions and revised the authority of the impacted females. They were reauthorized to access their computers. Complainant did not engage in that process. Assuming solely for the purpose of argument, that a prima facie case of discrimination was shown on all bases, the Agency's legitimate, nondiscriminatory reasons for suspending Complainant were that Complainant failed to comply with several admonishments requiring him not to access an Agency computer without authorization. No Pretext Shown As evidence of pretext, Complainant argues that other employees who, like him, did not complete required training, were not disciplined. However, the record reflects that another employee, C1, was similarly disciplined. Additionally, as observed by the Administrative Judge in his decision granting summary judgment, the comparators identified by Complainant were not similarly situated, as they were in a different work unit, reporting to a different manager. Moreover, as noted above, the call center employees identified by Complainant as having been restored access, only received such restoration pursuant to an order from the Merit Systems Protection Board. Finally, Complainant asserted that two other Supervisors S3 and S4, were named as responsible management officials in his prior EEO complaint but offered insufficient evidence of bias against him based on their participation. We find that Complainant has not established by the preponderance of the evidence that the Agency's legitimate, nondiscriminatory reasons for suspending Complainant was pretext designed to mask discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we affirm the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that tend to establish that: 2019005257 6 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, 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). 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. 2019005257 7 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 December 16, 2020 Date