[Redacted], Iona A., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Apr 25, 2022

Appeal No. 2021003470 (E.E.O.C. Apr. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iona A.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021003470 Hearing No. 570-2019-01090X Agency No. FBI-2018-00114 DECISION On June 1, 2021, 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 March 31, 2021, final order concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent, GS- 13, at the Agency’s office in Baltimore, Maryland. On April 3, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On December 8, 2017, Complainant received a letter proposing her removal from the 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 2021003470 Agency; 2. On December 8, 2017, Complainant received a letter stating that she was indefinitely suspended; 3. On January 17, 2018, Complainant learned that the Agency provided the Maryland Unemployment Office with information that resulted in the denial of unemployment benefits; and 4. On March 9, 2018, Complainant learned that she had received a 60-day suspension. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On March 4, 2021, the AJ issued a notice of proposed summary judgment in favor of the Agency (the Notice). The Notice stipulated the following pertinent facts. In July 2014, Complainant was reassigned to the Agency’s Baltimore Field Office. ROI at 61-2. Between July 2014 and March 2015, Complainant and an Agency Task Force Officer (Officer) exchanged approximately 2,705 text messages utilizing Complainant’s Agency-issued cell phone. ROI at 140. The language of the text messages indicated a romantic and sexual relationship. Id. Complainant’s supervisor (Supervisor) was unaware of Complainant’s personal relationship with Officer. ROI at 101. On January 6, 2015, Officer was involved in a serious accident in an Agency-leased vehicle. Id. at 101. Supervisor assigned Complainant to investigate whether Officer was driving within the scope of his employment at the time of the accident. Id. Complainant conducted a cursory and incomplete investigation and determined that Officer was acting within the scope of his employment at the time of the accident. ROI at 101-02. She did not inform Supervisor of her personal relationship with Officer or attempt to recuse herself from the investigation. Believing there were discrepancies in Complainant’s investigation, an additional investigation was conducted by other agents that concluded that Officer was not acting within the scope of his employment at the time of the accident. Id. at 102. Specifically, the investigation revealed that Officer had been at Complainant’s home for personal reasons prior to the accident and the reasons provided for traveling that day were not accurate. Id. As a result, on March 1, 2017, an Agency administrative inquiry was conducted concerning Complainant’s investigation of Officer’s accident. ROI at 102 and 124. The administrative inquiry concluded that Complainant’s personal involvement with Officer compromised her professional judgment and caused her to perform an inadequate and deficient investigation, which led to the indefensible conclusion that Officer was acting within the scope of his employment. ROI at 145. 3 2021003470 The administrative inquiry also determined that Complainant misused her Agency-issued cell phone by exchanging over 2,700 text messages with Officer. ROI at 146. The administrative inquiry concluded that Complainant lacked candor when she failed to be forthright about her affair with Officer and the nature of his visit to her home just prior to the accident and when, under oath, she intentionally and significantly understated the duration of her relationship with Officer. ROI at 147. As a result of the serious and egregious misconduct, the Agency’s Office of Professional Responsibility (OPR) proposed Complainant for dismissal on December 5, 2017. ROI at 102-03. After an internal administrative appeal process, on February 9, 2018, the Agency suspended Complainant from duty without pay for 60 calendar days rather than terminate her. ROI at 198. Also, in December 2017, Complainant applied for unemployment benefits through the Maryland Unemployment Office. ROI at 73. On February 27, 2018, the Agency received notice from Equifax that the State of Maryland, Department of Labor, Licensing, and Regulation (MD DLLR) was holding a telephonic hearing on March 1, 2018. The Agency was unable to participate in the unemployment hearing. Accordingly, the adjudicatory relied on the documents the Agency initially submitted to Equifax. ROI at 120. On March 26, 2018, the Agency received MD DLLR's decision, dated March 12, 2018, denying Complainant's benefits beginning December 3, 2017, for a total of 12 weeks. Id. In response to the Notice, on March 29, 2021, the Agency filed a motion for summary judgment. Complainant filed a timely response in opposition to the Agency’s motion. The AJ found that Complainant failed to show that further development of the record was likely to lead to a finding of discrimination. On March 31, 2021, the AJ issued a summary judgment decision in favor of the Agency. The AJ found that the Agency provided legitimate, nondiscriminatory reasons for its actions, namely that it disciplined Complainant for her misconduct. The AJ then determined that Complainant failed to proffer any evidence to demonstrate that the Agency subjected her to prohibited disparate treatment. On May 4, 2021, the Agency issued a final order adopting the AJ’s decision that Complainant failed to prove discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the record was inadequately developed, asserting that numerous documents were excluded from the ROI. Complainant also contests the procedural approach employed by the AJ in deciding Complainant’s two cases separately. The Agency did not submit an Appeal Statement. 4 2021003470 ANALYSIS AND FINDINGS Summary Judgment 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. (Aug. 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). In order 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. Contrary to Complainant’s appeal contentions, we find that the record was adequately developed and the AJ’s decision addressed the undisputed relevant material facts. Complainant also failed to show that she had no access to the ROI and the opportunity to develop the record significantly during the formal EEO investigation. Therefore, we conclude that the AJ appropriately issued a decision without a hearing. Preliminary Matter Complainant alleged that the AJ improperly kept his two cases separate instead of consolidated them into one hearing. An Administrative Judge has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a)(e). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016) citing Kenyatta S. v. Dept. of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJ's wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). Here, there is no basis to conclude that the AJ’s procedural approach was improper or that he was in any way “careless” with respect to any aspect of the hearing process. Therefore, Complainant’s appeal assertions warrant no further discussion as they are uncorroborated by the record. 5 2021003470 Unlawful Retaliation A claim of disparate treatment based on indirect evidence 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 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. 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. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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 and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Here, with respect to claims 1, 2, and 4, the Agency took the alleged actions due to Complainant’s serious and egregious misconduct. An internal investigation concluded that Complainant lacked candor when she conducted an incomplete investigation concerning the accident involving Officer; when she failed to be forthright about her relationship with Officer and the nature of his visit to her home just prior to the accident; and when, under oath, Complainant intentionally and significantly understated the duration of her relationship with Officer. Further, as to claim 3, we find that the Management and Program Analyst (Analyst) provided an affidavit in which she explained the Agency’s processing of unemployment benefits. See ROI at 116-22. She noted that on December 15, 2017, she received a notice from Equifax that Complainant had applied for unemployment benefits in Maryland. ROI at 119. At that time, she asked for information regarding Complainant’s proposed removal and provided the necessary documents to Equifax on December 22, 2017. Id. She received notice from Equifax that the hearing was to be held on March 1, 2018, however, the Agency could not participate. The hearing was held, and the MD DLLR had to rely on the documents previously submitted by the Agency. Finding that the Agency has met its burden, we turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. Upon review, Complainant reasserts her arguments that the alleged actions were based on her prior protected EEO activity. However, she did not proffer any evidence to demonstrate that similarly situated employees not involved in EEO activity who 6 2021003470 had engaged in similar misconduct were disciplined differently. Moreover, the record reflects that Complainant acknowledged that the alleged actions were not based on her protected EEO activity. Complainant stated that her “lack of good judgment in her failure to disclose the nature of her relationship with Officer.” ROI at 185. Also, included in the record is a Last Chance Agreement executed by Complainant in which she agreed to serve a 60-day suspension and refrain from further misconduct. ROI at 196. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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. 7 2021003470 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). FOR THE COMMISSION: ___________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 25, 2022 Date