[Redacted], Lon G., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 19, 2021

Appeal No. 2020004242 (E.E.O.C. Apr. 19, 2021)

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. 2020004242 Agency No. ARPOM18MAR01154 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 April 27, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (Middle Eastern), sex (male), and religion (Muslim) when: 1. In late November 2017, Presidio of Monterrey Police Department Detective (DT), failed to take action when Complainant reported receiving threatening emails and voice messages in his work phone and email from his ex-girlfriend (XGF); 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 2020004242 2. On March 18, 2018, DT seized Complainant's work computer, work iPad, and home computer without a warrant and against his will, due to the alleged misuse of government equipment by watching pornographic materials, selling items on the web, and gambling on websites during work hours; 3. On March 21, 2018, DT threatened Complainant during an unscheduled investigation when DT stated Complainant was going to lose his job and asked if he really hated his ex-girlfriend that much; 4. In March 2018, DT discriminated against Complainant when DT created the “TITS” case to get Complainant fired after the report of a life-threatening message regarding the safety of his family and the US Armed Forces; 5. In March 2018, DT discriminated against Complainant when DT said that DT does not care, in reaction to Complainant's informing DT that he needed to take medication due to a serious illness, and disclosed investigation details to other parties and violated Complainant's privacy when Complainant told another party that Complainant was terminated from his job; 6. On March 20, 2018, DT harassed Complainant when DT came to Complainant's office and took his computer; and 7. In March 2018, DT harassed Complainant by accusing him of watching pornography on a work user account, and threatened Complainant's life in order to take a personal computer at Complainant's home. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. In his pro-se appellate briefs, Complainant contended that DT (male, Asian, Christian) was motivated by anti-Muslim and anti-Middle Eastern animus in conducting the Agency’s investigation. Complainant stated that, verbally and in emails, DT had expressed favoritism toward XGF (Caucasian, Christian), because she was Caucasian and Christian. Complainant accused DT of conspiring with his XGF to fabricate evidence against him while destroying exculpatory evidence. Complainant stated that it was XGF who had actually threatened him and sabotaged his employment with the Agency. Complainant alleged DT had bullied him throughout the course of the investigation, including during a recorded interview, and that DT turned-off his body camera in order to bully Complainant. Complainant stated DT had caused him to be evicted by gratuitously sharing information with Complainant’s landlord. According to Complainant, the Agency’s final decision wrongfully disregarded interviews of two witnesses’ testimonies. Complainant stated the Agency had suspended DT for misconduct while investigating him. 3 2020004242 Complainant alleged DT violated his rights by seizing his personal computer and iPod without a consent, a warrant or rights advisement. Complainant accused the Agency of illegally withholding favorable information when it denied Complainant’s Freedom of Information Act Request. 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 racial 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. 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). 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). We carefully considered Complainant’s appellate arguments and the evidence of record. We find the Agency’s explanations legitimate and non-discriminatory as described hereafter. 4 2020004242 Claim 1 - Failure to Investigate Voice Mail Harassment Against Complainant In November 2017, Complainant reported to the Agency that he had been threatened in voicemails and emails. Complainant shared a voicemail with DT wherein XGF said words to the effect of: “This is me harassing you now . . . leave me alone.” The record included veiled threats in personal emails that Complainant received in November 2017, from a male friend of XGF. The Agency stated DT did not take action because he believed the matter was outside of his law enforcement jurisdiction. Instead, DT referred Complainant to the Monterrey Police Department and advised him to file for a restraining order through the local court. As to Complainant’s position that the Agency disparately acted swiftly when XGF later made allegations against him, we note that Complainant’s harassment allegations against XGF and her associates did not implicate Agency personnel or Agency property. Consequently, we find nothing improper or discriminatory in DT’s response to Complainant’s threat report. Claim 2, Claim 6, and Claim 7 - Improper Seizure of Computers The Agency explained that the computers at issued were seized and inspected relating to the Article 15-6 administrative investigation into Complainant’s use of government time, computers and networks. Initiated in February 2018, that investigation substantiated the misconduct charges against Complainant. During August and September 2017, Complainant had the Agency’s IT helpdesk recover certain files and images. Complainant had falsely stated that the files were related to his teaching for the Agency. When recovered, however, the Agency learned those files contained videos and images of XGF which were completely unrelated to Complainant’s Agency work. As a result of XGF’s stalking allegations, the Agency’s official investigation determined that Complainant had saved on his government computer a PowerPoint image of XGF wearing only underwear that was captioned: “[her] ass is public property.” The Agency also found a photo that had been doctored so that XGF appeared topless next to professionally-dressed colleagues. It was revealed that Complainant had then used a government computer or network to send compromising images of XGF to a state professional board and the state governor. The Agency discovered Complainant had spent an inordinate amount of government time on personal pursuits. For example, on the afternoon of Thursday, September 14, 2017, Complainant sent a lengthy message regarding the files he had the Agency recover so that he could edit them for XGF: I did beg you because I wanted to do anything for you and I still do . . . it was never about money I don't want to talk about the past and the negativity that happened last month but I was asking to see you many times so you can give some tips for working on the videos and to give you back the drive and you kept ignoring me. I told you what I did. I asked you many times if you were back with your husband and you said yes and I just searched to see what is so special about him but I never contacted him and I never contacted anyone using your name . . . you really never tell me the full story. and when I try to ask, you say that you don't want to talk about it and I try not to force because I always careful not to 5 2020004242 hurt your feelings. you have made my life miserable since Dec 26th. I asked you to define my role in your life a million times and you never did . . . how did I make your life so hard?? you didn't have to wrap it on my face . . . like what did you expect? people walked in the office and saw me crying many times I'm here to say I'm sorry and I will Literally get on my knees and beg you to forgive me and that is all because I care for you and I will do anything to gain your trust back. if you are going to edit the videos, please give me a chance to help you (with a little cooperation) is all I'm asking. Based upon evidence that confirmed misuse of government resources, we find the Agency was justified in seizing the computers from Complainant. Claim 3, Claim 4, and Claim 5 - Agency Law Enforcement Bias Against Complainant In April 2018, Complainant formally complained to Agency law enforcement that DT was biased against his race and religion. Complainant stated that DT had menaced him with a firearm and made overtly racist or anti-Islamic statements. According to Complainant, when he told DT that he needed to take his medicine, DT dissuaded him from doing so and that DT did not care if all Arabs went to hell. Complainant alleged DT had fabricated evidence and disclosed that he intended to get Complainant fired. Complainant claimed that DT had made fun of his hair and his accent. Complainant suspected that DT was acting out of favoritism to XGF. The Presidio’s Deputy Chief of Police interviewed Complainant and took his sworn statement regarding the Complaints against DT. The Agency stated that the both the Presidio’s Deputy Chief of Police and Chief of Police conducted an internal inquiry wherein they reviewed recordings of discussions between DT and Complainant. Agency management’s inquiry concluded that allegations were unsupported or false. A close reading of Complainant’s testimony shows that DT did read Complainant his rights. Complainant chose to waive his rights because he believed he had “nothing to hide” and “wanted to cooperate.” We are not unsympathetic to Complainant’s statements that he was profiled by Agency law enforcement because of his race or religion. However, Complainant failed to present any corroborating evidence whatsoever beyond his self-serving descriptions of the events. On appeal, Complainant mentioned that two witnesses had testified but their statements were absent from the report of investigation. Complainant neglected to clarify whether those witnesses would contradict or support him. Given the detailed evidence generated from Complainant’s wrongful computer use, it is speculative that Complainant’s EEO protected characteristics factored into the Agency’s decisions concerning his employment. Finally, we find that Complainant has not presented sufficient evidence necessary to support his position that the Agency’s stated non-discriminatory motives were pretextual. CONCLUSION We AFFIRM the final decision finding that Complainant failed to prove that the Agency had subjected him to discrimination as he had alleged. 6 2020004242 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. 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). 7 2020004242 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 19, 2021 Date