[Redacted], Frank A., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003774 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frank A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2020003774 Hearing No. 570-2016-01562X Agency No. NGAE-15-HD26 DECISION On May 26, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final decision of the Agency 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant was an employee at the Agency’s National Geospatial- Intelligence Agency in Springfield, Virginia. On November 4, 2015, Complainant filed a formal EEO complaint alleging: 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. 2020003774 2 (a) That the Agency discriminated against him on the bases of race (Asian), sex (male), disability (cancer), age (63), and in reprisal for prior protected EEO activity2 when: 1. On August 14, 2015, he received a notice from the Office of Inspector General indicting that it could not assist him with his inquiries; 2. After returning to duty on July 16, 2015, Complainant was reassigned to a position of Human Resources Specialist, to obtain more operational experience; 3. On April 28, 2014, Complainant was escorted off the Agency’s campus and placed on Administrative Leave, without explanation or information; 4. During the 14 months that Complainant was on Administrative Leave, he was not notified that 48.5 hours of his accrued annual leave was scheduled to be forfeited at the end of the 2014 leave year. (b) That he was subjected to unlawful retaliation for engaging in prior protected activity when, in December 2015, he received an inadequate response to his Freedom of Information Act (FOIA) request. After an 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 timely requested a hearing. The Agency submitted a motion for summary judgment on July 3, 2019. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a decision without a hearing on April 14, 2020. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding of no discrimination or unlawful retaliation was proven became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 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). 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. 2 Complainant stated that he engaged in prior protected EEO activity in March 2013 when he requested and subsequently received an ergonomic keyboard as a reasonable accommodation. 2020003774 3 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. 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. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates a dispute of material fact necessitating a hearing. 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 a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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). On April 28, 2014, following statements from four co-workers, Complainant was escorted from the facility and his access was removed. The co-workers had gone to their first and second-level supervisors and informed them that Complainant had made threatening statements. The Agency’s Threat Mitigation Unit (TMU) conducted an investigation to determine whether Complainant posed a threat. After the investigation and Complainant’s voluntary interview with a licensed professional counselor, it was determined that Complainant posed an elevated risk of workplace violence and/or self-harm. While Complainant alleged that he was not given a reason for his removal from the facility and placement on administrative leave, the two security officers from TMU testified that they told Complainant that he was being removed because he posed an elevated risk of workplace violence and/or self-harm. When Complainant returned to work, after 14 months on administrative leave, he was reassigned to a new position. Complainant objected to his reassignment, but the record shows that the Agency was unable to place Complainant back with his former team in a Band 4 position due to budget cuts. The record also shows that the upcoming budget cuts were known in 2013, prior to Complainant’s placement on administrative leave. 2020003774 4 Regarding his claim concerning forfeiting accrued annual leave due to use-or-lose rules, the record shows that during Complainant’s 14 months of paid administrative leave, he had full access to his leave and earning statements. Pursuant to the Office of Personnel Management’s guidelines, being placed on extended excused absence does not relieve an employee of responsibility to schedule annual leave that would otherwise be forfeited. Complainant sought assistance from the Office of Inspector General (OIG) when he was approved to return to work, to find out why he was placed on administrative leave. The Deputy Assistant OIG for Investigations advised Complainant that OIG does not address those types of matters and that Complainant should contact the Agency’s FOIA/Privacy Act Office. The evidence of record fully supports the AJ’s determination that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Complainant makes no arguments on appeal, and therefore fails to prove, by a preponderance of the evidence, that these reasons were a pretext designed to mask discrimination or unlawful retaliation. Complainant also alleged that the Agency’s response to his Freedom of Information Act (FOIA) request was inadequate and the result of retaliatory animus. However, the EEOC AJ correctly cited prior Commission decisions holding that challenges to the processing of FOIA requests do not state a valid claim under the 29 C.F.R. Part 1614 EEO complaint process. The language of the Freedom of Information Act provides the exclusive statutory framework for governing the disclosure and access to information contained in federal records. This Commission has consistently ruled that it does not have jurisdiction over the processing of FOIA requests since disputes regarding such requests should be addressed through the appropriate Department of Justice guidelines and Agency FOIA implementing regulations. See Gaines v. Dep't of the Navy, EEOC Request No. 05970386 (June 13, 1997); Angella F. v. United States Postal Service, EEOC Appeal No. 0120160439 (March 3, 2016); Nicki B. v. Dep’t of Veterans Affairs, EEOC Appeal No.2020001389 (September 9, 2020). CONCLUSION We AFFIRM the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation, which became the Agency’s final decision, in the absence of an Agency final order. 2020003774 5 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. 2020003774 6 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 November 4, 2021 Date