[Redacted], Lon G., 1 Complainant,v.John E Whitley, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionApr 19, 2021Appeal No. 2020005300 (E.E.O.C. Apr. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lon G.,1 Complainant, v. John E Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020005300 Agency No. ARPOM18DEC01497 DECISION On July 20, 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 July 7, 2020, 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. BACKGROUND During the period at issue, Complainant worked as an Instructor and Assistant Professor, Grade AD-00, at the Agency’s Middle East School, Defense Language Institute, Foreign Language Center facility in The Presidio of Monterrey, California. On June 8, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Egyptian) and religion (Muslim) when: 1. From February 20, 2018 to April 12, 2018, the Agency initiated an investigation against Complainant without informing him or telling him of his rights, fabricated evidence against him, and accused him of watching pornographic materials and visiting gambling sites on his government computer; and 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 2020005300 2. On April 19, 2018, Complainant’s first-line supervisor (Chinese, no religion) issued him a Notice of Decision to Remove from Federal Service letter with an effective date of April 27, 2018. 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 EEOC Administrative Judge (AJ). After Complainant declined to respond to the notice within the allotted time period, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The final decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. In his pro-se appellate briefs, Complainant contended his second- line supervisor (S2) had always resented Complainant based on his nationality and religion because S2 was Lebanese and Christian. Complainant stated that S2 disapproved of Complainant’s relationships with Christian or non-Arab women. Complainant accused S2 of causing his divorce from his American wife and denying him promotions while promoting less qualified Lebanese instructors. Complainant denied he had committed any wrongdoing on a government issued computer. Complainant argued that unauthorized images, games and other prohibited files were from a common shared drive at the Agency. Complainant stated it was impossible for him to have visited pornography or gaming websites on a government computer because the Agency blocks access to such sites. Complainant alleged that the program officer (American, non-practicing) who the Agency appointed as investigating officer (IO) for its administrative investigation into Complainant’s computer use had not seen computer evidence, but predetermined Complainant’s guilt based on animus against Arabs. 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”). We reviewed, de novo, Complainant’s claims of religious and national origin discrimination in accordance with the U.S. Supreme Court’s three-part analysis from McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish prima facie of disparate treatment, 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 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The second burden shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 3 2020005300 See Texas Dep’t of Cmty. Affairs 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 based on animus toward his EEO-protected characteristics. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). We may bypass with first requirement of the prima facie case establishment in some cases, to include the present matter. Where the Agency has articulated a legitimate, nondiscriminatory reason for the its actions at issue, our factual inquiry proceeds directly to the third step of the McDonnell Douglas test, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that Agency’s justification for any of its decisions was a pretext to mask unlawfully discriminatory motives. See U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133, 143 (2000). Complainant’s appellate arguments as well as the evidence of record were examined but we find the Agency’s explanations were legitimate and non-discriminatory as detailed below. Claim 1 - Investigation, Failure to Advise of Rights, Fabrication of Evidence and Accusations Regarding the Agency’s investigation, the IO explained that Complainant’s former girlfriend had contacted the Presidio’s staff judge advocate to report that Complainant had been harassing her though texts, emails and social media. As a result, the IO was appointed to investigate misconduct charges against Complainant. The IO indicated that that he could not advise Complainant of his rights because Complainant was unavailable to do so. Complainant was unable to participate in administrative investigation into his conduct because he had been incarcerated for reasons unrelated to his Agency employment. The Agency assigned a cybersecurity information systems security (cyber expert) manager to capture the contents of the government-issued laptop that Complainant used. Witness statements revealed that Complainant had used the computer improperly. The cyber expert did not find evidence that the computer Complainant was using had been hacked. The cyber expert stated that information on the hard drive showed that it was Complainant who had created files and browsed on that particular laptop. No evidence reflected that someone other than Complainant had fabricated information from the computer. We note that the record only contained statements as opposed direct evidence of Complainant visiting pornography or gaming sites. Even so, the record nevertheless did include evidence demonstrating that he had improperly used the government laptop for entertainment. Specifically, Complainant had downloaded a significant number of episodes of the cartoon SpongeBob SquarePants. The Agency did not investigate the allegations in a discriminatory manner. We found nothing that established evidence had been manipulated to incriminate Complainant. Claim 2 - Removal from Federal Service S1 explained that after she had read the report from the official Agency investigation, she had recommended that Complainant be removed from federal service. S1 stated she was aware of Complainant’s nationality but not his religion. 4 2020005300 S1 denied Complainant’s protected statues were factors in her decision to recommend removal. Similarly, in her transcribed statement, S2, who had been responsible for Complainant’s removal said her actions were based on the findings of the Agency’s investigative report. S2 stated she also considered Complainant’s responses to the charges but was unconvinced by Complainant’s declarations that he had been the target of a conspiracy. S2 stated that denial of responsibility and lack of remorse were also factors in issuing the Complainant’s notice of removal. S2 had also been the deciding official when Complainant’s spouse was terminated from federal service as well. However, Complainant’s spouse’s employment ended long before, in 2009, and was based on unsatisfactory performance. S2 allowed Complainant to tender his resignation to avoid involuntary termination. Overall, we find Complainant’s counter-accusations against S1 and S2 and the IO lack evidentiary support. Finally, we reject Complainant’s assertions that Agency adverse actions were motivated by favoritism for Lebanese or Christians. This record was devoid of evidence the Agency’s reasons for its decisions were pretexts to conceal anti-Egyptian or anti-Muslim animus. CONCLUSION After a thorough review of record evidence and contentions on appeal, it is the decision of the Commission to AFFIRM the Agency’s final decision 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. 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 5 2020005300 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. 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. 6 2020005300 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 19, 2021 Date Copy with citationCopy as parenthetical citation