[Redacted], Fletcher E., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Oct 20, 2021

Appeal No. 2020003645 (E.E.O.C. Oct. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fletcher E.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2020003645 Hearing No. 530-2018-00155X Agency No. 9L4W17004 DECISION On May 25, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning his EEO complaint of unlawful 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 relevant time, Complainant worked as a Computer Engineer, GS-13, at the Agency’s Office of Special Investigations, Defense Cyber Crime Center (DC3) in Linthicum, Maryland. On February 27, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African American) and in reprisal for prior protected EEO activity 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. 2020003645 2 1. On October 31, 2016, Complainant received a Notice of Decision to Remove, effectively removing him on October 28, 2016, for failure to maintain a Top-Secret security clearance, a required condition of employment. 2. On August 29, 2016, the Agency issued Complainant a Proposal to Remove. 3. On July 2016, the Personnel Security Appeal Board (PSAB) issued a final decision to uphold the revocation of Complainant’s Top-Secret security clearance. 4. On or about August 2014, Complainant received a Memorandum for the Record that an investigation into his security clearance was being conducted. 5. Within the years of 2013 and 2014, Complainant did not receive a bonus compared to similarly situated Computer Engineers working in DOD Cyber Crime Center (DC3). 6. On or about 2011, Complainant's manager negatively impacted his advancement when he allowed Complainant’s white co-worker to present the work he researched and prepared for the 2011 Challenge Conference on Solid State Drives.2 7. In 2016, management refused to mediate with Complainant regarding his security clearance. 8. When, during 2010 and 2013, Complainant questioned DCCI Director about consideration for promotion, the DDCI Director stated there were no GS-14 positions open but assured him that when a spot opened up Complainant could have it. Subsequently, on July 17, 2017, Complainant learned five less qualified Caucasian co-workers were promoted to GS-14 during 2010 and 2014. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant responded to the Motion. On March 18, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. The Agency did not issue a final order, and the AJ’s decision became the final decision in this matter. The instant appeal followed. 2 The record reflects that the Agency dismissed claim 6 for untimely EEO counselor contact. In the proceedings before the Administrative Judge, as more fully discussed below, the Administrative Judge acknowledges the Agency’s prior dismissal of claim 6 (Report of Investigation, p 155), without further elaboration. We have reviewed the record and find no reason to disturb the Agency’s dismissal of this claim as untimely raised. 2020003645 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party 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). The undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Revocation of Security Clearance On September 24, 2013, the Acting Director, Defense Cyber Crime Institute (DCCI) became Complainant’s first-line supervisor (“S1”). From April through July 2014, Complainant sent multiple emails to S1 and others describing feeling intense radiant heat on the left side of his head, face, eye and sometimes shoulder while at his workstation. 2020003645 4 The first email on April 15, 2014 stated this had been occurring for approximately five months. On July 14, 2014, Complainant stated, “[i]f we should find that these incidents are controlled, as I suspect, I consider each incident a physical assault against me that is happening on a daily basis.” On July 25, 2014, Complainant stated in an email, that he had been experiencing “gang stalking”3 and that the “burning and stinging sensations are being caused deliberately, electronically.” Thereafter, the Agency conducted an Indoor Air Quality Survey on May 15, 2014. The survey revealed no concerns related to air quality or radiation. On July 25, 2014, Complainant was placed on Administrative Leave with all pay and benefits. On August 13, 2014, the Agency issued Complainant a Notification of Suspension of Access to classified information because he was not working onsite. Complainant was issued a Request for Medical Information and Fitness for Duty Examination dated August 13, 2014. Complainant provided documentation from a neurology consult. On November 26, 2014, the Agency management requested supplemental medical documentation, including a mental health evaluation. However, Complainant refused to submit a mental health evaluation. As a result, on April 3, 2015, the Executive Director recommended the revocation of Complainant’s security clearance. On December 7, 2015, the Executive Director and S1 recommended the permanent revocation of Complainant’s security clearance. On January 15, 2016, Complainant was informed of the decision to revoke his security clearance. Complainant appealed the revocation of his security clearance and requested a hearing and personal appearance before the Agency’s Defense Office of Hearings and Appeals. On March 21, 2016, a hearing was held in which Complainant made his personal appearance and produced evidence for the record. The decision of the administrative judge dated June 8, 2016, recommended to the Personnel Security Appeal’s Board (PSAB) that it sustain the revocation, and on July 18, 2016, the PSAB’s three-person panel upheld the revocation. In accordance with the national security exception contained in Section 703(g) of Title VII, 5 U.S.C. Chapter 75, and Department of the Navy v. Egan, 484 U.S. 518 (1988) and its progeny, the EEOC has long held that it does not have jurisdiction to, and therefore will not, review an agency’s determination concerning the substance of a security decision. See EEOC’s Policy Guidance on the Use of the National Security Exception Contained in & 703(g) of the Civil Rights Act of 1964, as amended, EEOC Notice No. N-915-041 (May 1, 1989). However, the EEOC does have jurisdiction to review whether an agency has suspended a complainant's security clearance in a discriminatory manner. See Schroeder v. Dep't of Def. (Def. Mapping Agency), EEOC Request No. 05930248 (Apr. 14, 1994); Lyons v. Dep't of the Navy, EEOC Request No. 05890839 (Mar. 22, 1990). 3 According to Complainant, the term “gang stalking” refers to a “vast web of intelligence-based conspirators who target individuals using a variety of illegal means and methods.” 2020003645 5 Complainant’s first four claims in this matter all relate to the Agency’s revocation of his security clearance which led to his termination. Maintaining a security clearance was a condition of his employment. Complainant does not dispute this. Instead, Complainant questions the substance and validity of the security determination by arguing that the Agency’s use of certain facts in its revocation determination was retaliatory because these facts were in an earlier EEO complaint filed by him.4 While the EEOC has jurisdiction to review a revocation that was done in a discriminatory manner, we agree with the AJ that this dispute does not fall under that exception. We cannot review the substance of the evidence that was used to adjudicate the revocation of Complainant’s security clearance. Simply because evidence was part of an EEO complaint does not establish retaliation in violation of Title VII when the same evidence was used to determine Complainant’s fitness to hold a Top-Secret security clearance. Removal from Position On August 29, 2019, Complainant was issued a Notice of Proposed Removal, which was finalized in a Decision to Remove dated October 27, 2016. Complainant’s removal became effective on October 28, 2016. S1 stated Complainant was removed from his position for failure to maintain a required condition of employment by not maintaining a security clearance. It was noted that the PSAB upheld the revocation of Complainant’s security clearance. The Executive Director confirmed the decision to remove Complainant from his Computer Engineer position was for failure to maintain a condition of employment. Specifically, he explained that Complainant’s position required a Top-Secret clearance to have access to classified technical intelligence and classified discussions with respect to developing technical solutions for DoD requirements. In sum, it is clear that Complainant’s removal was directly tied to the fact that his security clearance, a required condition of employment, was revoked. This was the clear reason for his removal and not his race or retaliatory animus. 4 Specifically, in August 2013, Complainant filed an EEO complaint alleging his supervisor did not take his reports of tampering with his computer seriously. It appears Complainant alleged that someone tampered with his work computer four different times without his consent. He believed that the screws holding his computer together had been secretly secured using adhesive and therefore, he was unable to remove his hard drive tray. He had also claimed that his computer had been accessed twice by an unknown user. All four incidents were reviewed by an independent inspection and were not substantiated. 2020003645 6 No Bonus and Lack of Promotion to GS-14 Regarding Complainant’s allegation that in 2013 and 2014 (claim 5), Complainant did not receive a bonus compared to similarly situated Computer Engineers working in DOD Cyber Crime Center (DC3), Agency management explained that Complainant was the only assigned Computer Engineer during the relevant period and there were no other similarly situated employees to compare the employee’s bonus. With respect to claim 8, the evidence shows that during his employment, Complainant expressed interest in being promoted to a GS-14. He was told by S1 and the Executive Director that there were no available positions at the time. The Executive Director explained that an employee had to apply for a higher graded position and be competitively selected. S1 noted that in March 2010, the Staff Director of DC3 sent Complainant emails explaining how one can be promoted to a GS-14 and urged him to apply for any positions he was interested in. There is no evidence that Complainant applied for any GS-14 positions during the relevant period. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for Complainant’s not receiving a bonus and the lack of promotion to GS-14. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his race or retaliatory animus played any role whatsoever in these matters. CONCLUSION We AFFIRM the decision of the AJ, which became the final decision without a hearing, finding no discrimination. 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. 2020003645 7 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). 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. 2020003645 8 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 October 20, 2021 Date