[Redacted], Harry A., 1 Complainant,v.Marty Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Aug 23, 2021

Appeal No. 2020001484 (E.E.O.C. Aug. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harry A.,1 Complainant, v. Marty Walsh, Secretary, Department of Labor, Agency. Appeal No. 2020001484 Agency No. 19-04-019 DECISION On December 18, 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 December 2, 2019 final decision 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was an Information Technology (IT) Specialist, GS-2210-13, in the Agency’s Office of the Assistant Secretary for Administration and Management (OASAM) in Atlanta, Georgia. On November 13, 2018 (and later amended), Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (66), disability (Heart Syncope and Anxiety Disorder), and in reprisal for prior protected EEO activity when, on 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. 2020001484 2 November 13, 2018, Complainant learned that his network access to the "z account" had been disabled.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. IT employees are given two network accounts: an administrator and a regular user account. A “z administrator” account is a network account with privileges used to grant access, install hardware and software, and make changes to the operating system on the Agency’s desktop, laptop, and mobile devices. These accounts, if compromised could open the Agency’s computer network to security vulnerability. The disablement of z access privileged user account is a policy established by the Information Assurance Team to prevent unauthorized network access of inactive accounts. When a supervisor knows an employee is or will be on extended leave, the supervisor needs to submit a request to get the z account disabled for the term of the absence. ROI, Aff. C, p. 13, p. 557. On November 12, 2018, shortly after he originally filed his EEO complaint, Complainant learned his z account was disabled. Complainant had been on extended sick leave since March 8, 2018, until the time of his retirement on August 2, 2019. Complainant claimed that he had attempted to log in to the network from home to complete his timesheet (WebTA) and to access his official personnel file but received an error message. Complainant stated that he then went into his work office and spoke with an IT member who informed him that only his administrator account had been disabled and not his user account. Complainant then spoke with the IT Manager for the Atlanta Regional Office who stated he was unsure of how Complainant’s user account was disabled. The Agency’s Helpdesk was later able to reset Complainant’s user account but informed him that the administrator account would remain disabled. Complainant complained that he could not access his time and attendance, internet, and home directory and believed that disabling his access to the z account was retaliation. The Branch Chief testified that Complainant’s z administrator account was disabled on October 4, 2018, pursuant to a request from the Director of Safety, Technology Emergency Preparedness (Director) because Complainant was on extended sick leave. The Director confirmed that, in September 2018, he reached out to the Agency’s National Office to inquire 2 The Agency previously dismissed Complainant’s complaint which included additional claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim and pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. In Harry A. v. Dep’t of Labor, EEOC Appeal 2019001455 (Apr. 30, 2019), we affirmed the Agency’s dismissal of the claims related to Complainant’s grievances but remanded the instant claim regarding Complainant’s “z account access” for further processing. 2020001484 3 as to what actions, if any, should be taken regarding the administrative account for an IT staff member on extended leave. The Director was advised that the account should be disabled, and management subsequently submitted a Form ESD-12 requesting Complainant’s z account be disabled until May 2019. He emphasized that Complainant’s user account should have remained enabled. ROI, Aff. A, p. 568. The Director stressed that the “action to disable the account took place before the EEO was filed.” ROI, Aff. A., p. 527. The Director added that he was unsure why Complainant’s user account was impacted where he had no access to the WebTA, internet, and home directory. The Branch Chief stated he learned that Complainant was unable to log in on November 13, 2018, but he further averred it was not his intention to disable all of Complainant’s accounts and he believed Complainant’s user account remained enabled. Complainant claimed that his access was never fully restored. This created a hardship because he was required to go to the office to submit his time and accounting information. Complainant retired on August 2, 2019. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency failed to articulate a legitimate, non- discriminatory reason for its actions. Complainant averred that the Agency’s stated reasons are not legitimate because the Agency did not need to disable his z account and could have modified the privileges. He states that the managers’ explanations are not consistent, and he doubted the credibility of the Agency’s explanation because the Agency had not offered this security explanation when he first inquired about the reason for disabling his account. Accordingly, Complainant requests that the Commission reverse the final decision. 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 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 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 2020001484 4 consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 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. See U.S. Postal Service 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). In this case, we find that Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Director explained that he reached out the Agency’s National Office in September 2018, to determine if any actions needed to be taken for an IT staff member’s administrative account while on extended leave. Based on advice received from various Human Resources and IT officials, management submitted paperwork to disable Complainant’s administrator account access because he was on extended leave. The record shows that it is the policy and practice to disable accounts where the employee is on extended leave for security reasons. Management officials emphasized that Complainant’s user account was not disabled, and he still had access to WebTA and the Agency’s network. The Branch Chief stated he believed that Complainant still had trouble accessing his user account because he was attempting to use his PIV card to log in to the Agency’s network which was linked to the disabled z account. The record indicates that the Branch Chief advised Complainant that the PIV card could only be used to log in to the administrative account and how to log in without it. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant chose not to request a hearing request, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to 2020001484 5 demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry his burden here. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity 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. 2020001484 6 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. 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). 2020001484 7 FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 23, 2021 Date