U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harlan P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Cybersecurity and Infrastructure Security Agency), Agency. Appeal No. 2020003967 Hearing No. 570-2018-00537X Agency No. HS-HQ-01503-2017 DECISION On June 16, 2020, 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 9, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the IT Operations Section Chief, Infrastructure Security Compliance Division (ICSD), GS-2210-14, at the Agency’s National Protection and Programs Directorate (NPPD) in Arlington, Virginia.2 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. 2 During the pendency of this complaint, the subdivision of the Department of Homeland Security (DHS) known as NPPD was changed to an operational subcomponent agency (CISA) within DHS. 2020003967 2 On August 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and color (Black) when on May 1, 2017, Complainant became aware that management had denied him entitlement to Cyber Incentive Pay (CIP) for the 2016 and 2017 fiscal years. The Agency accepted this claim and conducted an investigation into the matter. The investigation showed that in 2015, a data call went out to identify positions that were eligible for CIP. CIP is a cybersecurity pay enhancement that is designed to aid in the recruitment and retention of cybersecurity experts by providing a pay supplement. A position (or billet as the Agency refers to it) must be approved for CIP prior to an employee being nominated for CIP. During the 2015 data call, Complainant’s second line supervisor (“Supervisor 2”) (Hispanic, tan) did not identify any billets under his supervision as being eligible for CIP. Complainant later sought to have his position approved for CIP. Complainant noted that he had been performing a variety of cybersecurity related duties since 2015, and he had obtained his Certified Information System Security Professional certification in 2015. Supervisor 2 believed Complainant’s billet did meet the criteria for CIP in 2016. However, he was informed that the Agency was not accepting additional billets for inclusion in the program as of FY2016. The Agency indicated new billets were not accepted again until FY2018. By that time, Complainant had taken another position elsewhere, in part due to concerns that he would not receive CIP in the future. Three other ICSD employees (who are Caucasian) did receive CIP at some time between December 2015 until 2017. However, these employees did not report to Supervisor 2 and one of them was not in the same job series as Complainant. Complainant felt he had been excluded from receiving CIP on the basis of race and color because he alleged, on an unspecified date, Supervisor 2 had commented Complainant would just spend the extra pay on an Escalade. Complainant also indicated that Supervisor 2 made him detail his income and expenses on a white board to justify the need for CIP. Both Supervisor 2 and Complainant’s first-line supervisor denied that Supervisor 2 made the comment about the Escalade. The first-line supervisor indicated the whiteboard discussion allegations were also false. He stated there was a conversation about homeownership and Complainant’s desire to purchase a home in the future. Supervisor 2 stated Complainant was not denied CIP. Rather, his billet was not performing CIP-eligible duties until after the Agency stopped allowing additional billets to be submitted. 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. On July 1, 2019, the AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a Notice of Proposed Summary Judgement. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 12, 2019, motion for a decision without a hearing and issued a decision by summary judgment on May 7, 2020. 2020003967 3 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. The instant appeal followed. On appeal, Complainant contends the AJ erred in granting summary judgement in favor of the Agency because the record was not sufficiently developed and because the AJ relied on credibility determinations in making the decision. He states that the AJ made a premature credibility finding that Supervisor 2’s statement about Complainant purchasing an Escalade was not credible. He also argued that his ability to show pretext was hindered because the AJ did not allow for additional discovery of the standards relied on by Supervisor 2 in his initial determination that Complainant was not eligible for CIP. Complainant further contends that the Agency’s articulated legitimate, nondiscriminatory reasons for his denial of CIP are pretextual given the evidence that Complainant was performing cybersecurity work and that Complainant would not have been ineligible for subsequent CIP exclusions in 2016 and 2017 when the Agency was not accepting new billets if his billet had been properly included in the 2015 data call. The Agency contends on appeal that Complainant has failed to establish the Report of Investigation was incomplete and that trying to include actions that happened in 2015 are outside the scope of the accepted issued of the complaint. The Agency further contends the AJ did not make a credibility determination as to whether Complainant or Supervisor 2 is more credible, but instead the AJ made a factual determination that Complainant had not shown the events occurred as alleged. Lastly, the Agency argues summary judgment was proper because Complainant failed to establish circumstances giving rise to an inference of disparate treatment discrimination based on race or color and he has adduced no evidence of pretext.3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 3 The Agency submitted a Motion for Clarification regarding having received correspondence relating to OFO Appeal No. 2021000107. The Commission confirms that this was in error and directs the Agency to disregard that correspondence. 2020003967 4 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 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 his favor. Complainant has alleged that his denial of CIP was motivated by his race and color. A claim of disparate treatment, such as this one, is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. 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). Complainant must show that the agency's action was more likely than not motivated by discrimination, that is, that the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Baker v. U.S. Postal Serv., EEOC Petition No. (May 13, 1999). Absent a showing that the agency's articulated reason was proffered to mask discrimination, complainant cannot prevail. Burdine, 450 U.S. at 256; Crosland v. Dep’t of the Army, EEOC Petition No. 03990018 (July 1, 1999); Mongere v. Dep’t of Defense, EEOC Appeal No. 01970738 (March 18, 1999). Here, even assuming arguendo that Complainant established a prima facie case, his claim still fails, as we find the responsible Agency official articulated a legitimate, nondiscriminatory reason for the disputed actions. Supervisor 2 explained that, when he was reviewing billets for inclusion in the CIP, he did not identify any eligible billets in his unit in 2015 and Complainant, therefore, did not receive CIP because he, like the other employees under Supervisor 2, was not eligible for it. 2020003967 5 Supervisor 2 further explained that the Agency stopped accepting new billets for inclusion into the program until after Complainant had taken another position and was no longer under his supervision. We note that Supervisor 2 indicated that Complainant was no longer under his supervision as of May 1, 2017 and the Agency’s Branch Chief indicated that, in January 2018, the program was to be reopened for the first time since it was implemented in 2016, to permit new billets to be identified and added to the program. In response, Complainant alleges that failure to include his billet as CIP-eligible in 2015 was a mistake because he was in fact performing cybersecurity duties at that time and his billet should have been eligible based on his position description, qualifications, duties performed, his 2015 annual review and his 2015 performance work plan. He claims that he is unable to demonstrate pretext because the Agency has not provided the criteria on which Supervisor 2 relied to make his 2015 determination that Complainant’s billet was not eligible. However, these arguments ignore that Supervisor 2 did not identify any billets under his supervision as CIP-eligible in 2015 (so Complainant was not his only supervisee deemed ineligible; they were all deemed ineligible). Complainant has argued that Caucasian employees in ICSD did receive CIP in 2015, but he acknowledges they were not under Supervisor 2’s supervision. He further asserted that other employees who were initially found ineligible later received CIP during the relevant time period, but he has not stated who these employees are and whether they are of a different race and color. In sum, Complainant has failed to show that Supervisor 2’s actions, even if based on criteria Complainant did not agree with, were motivated by discriminatory animus. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). Although Complainant has alleged that the Agency acted discriminately, he has failed to prove, by a preponderance of the evidence, that the Agency actions were because of his race or color. Therefore, his claim fails. 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. 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. 2020003967 6 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). 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. 2020003967 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 November 30, 2021 Date
