[Redacted], Doyle S., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020003088 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doyle S.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, Agency. Appeal No. 2020003088 Agency No. FINCEN-19-1091-F 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 February 27, 2020 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Regulatory Interpretation Specialist, GS-0301-13, for the Agency’s Financial Crimes Enforcement Network (FinCEN) office in Washington D.C. He entered duty with the Agency on November 13, 2017, under a Schedule A appointment as a person with a severe disability (serious back problems, sleep apnea, and insomnia) with a two-year probationary period ending November 13, 2019. Complainant was provided a special chair, standing desk, and flexible hours to accommodate his medical condition in late-2017 or early-2018. Complainant’s first-level supervisor (S1) was a Supervisory Regulatory Policy Specialist (Director, Office of Regulatory Policy). S1 generally knew that Complainant had medical issues relating to his back and the need for a special chair, and unspecified medical issues relating to his inability to sleep and wake up based on Complainant’s absence or tardiness to meetings. 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. 2020003088 2 Complainant was on his way to a FinCEN All-Hands Policy meeting when he was pulled over by the Chief, Metropolitan Washington Airport Authority Police Department (MWAA Chief) for speeding on the Dulles Airport Access Highway on February 14, 2019, at around 8:15 a.m. Complainant was not issued a citation or arrested. Following the traffic stop, the MWAA Chief submitted a complaint to the Agency’s Office of Inspector General (TIG) regarding his traffic stop because Complainant had identified himself as an employee of the Agency. TIG investigated the complaint and sent FinCEN the TIG’s Report of Investigation (ROI) completed on March 11, 2019. The ROI’s summary stated that the investigation substantiated the allegations that Complainant made false statements to the police when he implicated the Agency and FinCEN’s Director as his justification for violating Virginia state laws. The ROI based this finding on the statement given by the MWAA Chief that Complainant advised him that his excessive speed was due to having to “brief the Director on an important security matter” and that the emergency lights Complainant had installed in his vehicle were “courtesy” of FinCEN. Complainant denied these statements during his interview with TIG on February 26, 2019. The investigation did not substantiate the allegation that Complainant misrepresented himself as an Agency Law Enforcement Official. Although Complainant activated unauthorized emergency lights installed in his car, he did not identify himself as a law enforcement official. The credential case containing his Agency identification, which Complainant provided to the Chief first because his driver’s license was in the back seat, did not display any type of law enforcement markings on it. The ROI also included a screenshot of a brand website where Complainant identified himself as a brand ambassador endorsing the company’s military-style merchandise and stated he was an employee of FinCEN. On March 6, 2019, Complainant’s second-level supervisor, the Acting Associate Director Policy Division (S2) discussed with FinCEN’s Director a referral to the OIG regarding Complainant’s conduct and statements, and that he should be placed on Administrative Leave. On March 7, 2019, Complainant received a memorandum from S2, abruptly placing him on Administrative Leave, citing an investigation into Complainant’s conduct and that he failed to maintain the FinCEN’s high standards of integrity. Upon receiving the ROI from the TIG, S2 agreed with FinCEN’s Director and the Associate Director, Policy Division to sign Complainant’s termination notice. Complainant was still on the two-year probationary status when the Agency terminated his employment effective March 15, 2019. The termination notice stated Complainant’s conduct failed to meet the high standards of integrity required of FinCEN’s employees. On June 19, 2019, the Agency’s Office of Security Programs Director, reinstated Complainant’s national security clearance, which had been revoked March 28, 2019, following his review of the case file and Complainant’s statements and submitted documents in challenging the revocation. The letter did not discuss the substantiated claims of the TIG’s investigation; namely, whether Complainant told the Chief that he was speeding because he had to brief the FinCEN Director on a serious matter or that the emergency lights were courtesy of FinCEN’s. The letter did not make a determination as to Complainant identifying himself as a FinCEN employee while endorsing a product brand. 2020003088 3 On July 5, 2019, Complainant filed a formal complaint alleging the Agency discriminated against Complainant on the bases of disability when on March 15, 2019, management terminated his employment with the Agency during his probationary period. 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 EEOC Administrative Judge (AJ). Complainant requested a final Agency decision (FAD). In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that Agency management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, management explained that it was determined after an investigation by the TIG that Complainant implicated the Director as justification for speeding; Complainant falsely stated that the Agency gave him permission to use “courtesy lights” on his vehicle; and Complainant endorsed a product brand on a website that clearly identified him by name and photograph as an employee of the Agency. These actions led management to conclude that Complainant did not meet the high standards of integrity required of its employees and therefore terminated his employment. The Agency concluded Complainant failed to show management’s legitimate explanations were pretextual. The FAD acknowledged Complainant’s national security clearance was reinstated in June 2019, after having been revoked after his termination. However, the FAD found that the reinstatement letter did not address the matters of significance to the Agency officials in reaching their decision to terminate Complainant’s employment: his explanation for speeding; use of emergency lights on his vehicle, and endorsement of a product brand. As a result, the Agency found that Complainant had not been subjected to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues among other things, that the Agency’s reliance on an unreliable TIG ROI as a basis for termination was a pretext for unlawful discrimination. He challenges the credibility of the MWAA Chief and allegations that the TIG Special Agent that investigated the MWAA Chief’s complaint fabricated evidence, made false statements and factual errors. He alleges the letter he submitted to the Agency from the company of his brand ambassadorship stating he never received monetary compensation rebutted this justification for his termination. Complainant requests the Commission reverse the FAD because the Agency use of unsubstantiated and factually devoid allegations attacking his integrity as cause for termination was pretext for disability discrimination. 2020003088 4 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “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”). Disparate Treatment In order to establish a claim of disability discrimination under the Rehabilitation Act, a complainant must demonstrate that he is a qualified individual with a disability who was subjected to an adverse employment action because of that disability. See Swanks v. WMATA, 179 F.3d 929, 934 (D.C. Cir. 1999). Where the agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Swanks, 179 F.3d at 933. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28. 1990): Peterson v. Dep’t of Health & Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission finds no persuasive evidence that Complainant’s protected class was a factor in any of the Agency's actions. As detailed above, the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s termination-Complainant’s misconduct substantiated in the completed TIG ROI, which demonstrated that Complainant failed to meet the high standards of integrity expected of FinCEN employees. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on discriminatory animus. 2020003088 5 Complainant failed to carry this burden. Aside from Complainant’s allegations and conclusory statements, there is no evidence in the record that would support a finding that the Agency’s reliance on the TIG ROI and subsequent decision to terminate Complainant during his probationary period was pretextual. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2020003088 6 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. 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 June 7, 2021 Date