[Redacted], Opal M., 1 Complainant,v.Alejandro Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021001122 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Opal M.,1 Complainant, v. Alejandro Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021001122 Hearing No. 570-2020-00114X Agency No. HS-FEMA-00786-2019 DECISION On December 3, 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 October 29, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an IM-CORE Emergency Management Specialist, GS-11, at the Agency’s Response Directorate, Office of Response and Recovery, facility in Washington, District of Columbia. On April 10, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity when, on December 14, 2018, management issued Complainant a Notice of Termination of Appointment. 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. 2021001122 2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Complainant identified her disability as renal failure and diabetes. She alleged that management became aware of her condition in 2015, when she submitted medical documentation indicating she was on dialysis and was scheduled for a kidney transplant. She informed management that her kidney transplant was scheduled for March 2019 and this was going to require her to take three months of leave for recovery. Complainant attested that her disability impacted her work as she was unable to deploy to major disaster areas without electricity because she was on kidney dialysis. Therefore, she was limited to deployments within the United States. She attested that, although the Agency had previously given her a modified job assignment of being deployed to Doral, Miami so that she could access dialysis treatments, she currently used an in-home dialysis machine on her personal time. She attested that she was able to perform all work-related duties on a daily basis. Regarding her alleged basis of reprisal, Complainant alleged that her request for a reasonable accommodation was her prior EEO activity. She alleged that the Supervisory Program Manager (Supervisor) indicated that he did not want to accommodate her and, soon after, she was terminated. Supervisor and the Operations Cadre Coordinator (Coordinator) attested that they were aware of Complainant’s disability, but they denied the allegation that her medical condition or reasonable accommodation request was a factor in the decision to terminate her. Supervisor attested that he terminated Complainant on December 14, 2018 because she was found unfit to hold a Public Trust Clearance by the Office of the Chief Security Officer. He attested that the Branch Chief of Personnel Security issued a memorandum revoking Complainant’s clearance and restricting her access to Agency facilities and/or information technology (IT) network systems. He attested that the memorandum was sent to Labor/Employee Relations and they drafted and issued a termination action, which he was required to execute. Coordinator attested she concurred with the decision to terminate Complainant. She attested that management received a memorandum from the Agency’s Office of the Chief Security Officer, Personnel Security Division, indicating that Complainant had been found unfit to occupy a High- Risk Public Trust Excepted Service position with the Agency and, as a result, Complainant’s access to IT systems and Federal facilities was terminated. Coordinator explained that all Agency employees are required to maintain the level of clearance identified by their position and on their position description. She explained that Complainant’s position is “moderate risk” based on Office of Personnel Management guidelines and all IM CORE members sign the Agency’s Conditions of Employment, which indicate that they must successfully obtain/maintain a favorable determination for Federal employment. 2021001122 3 A memorandum to the Chief, Employee Relations, from the Branch Chief, Personnel Division, Office of the Chief Security Officer, dated December 10, 2018, indicates that Complainant was found unfit to occupy the position of IM CORE-Emergency Management Specialist with the Agency. The memorandum discusses several concerns raised by an investigation and fitness determination. It indicates that the review found that Complainant omitted employment and the unfavorable departure from an employer on her security documents, pled guilty to a charge of practicing mental health counseling without a license, falsified employment information, and continued to promote herself as having earned a Master’s Degree/Doctorate in clinical psychology after the recognized judicial body rendered the degree(s) invalid as having been acquired from a non-accredited school. The memorandum indicated that Complainant’s falsification of security and employment forms demonstrated a continued lack of candor and honesty and Complainant’s actions failed to promote the integrity and efficiency of the service. It indicates that Complainant was deemed ineligible (unfit) for a Public Trust Position. The memorandum indicates that Complainant’s access to Agency facilities and IT systems were to be revoked within 48 hours or 2 business days and directed Complainant’s supervisor to ensure Complainant was placed on administrative leave or in a non-duty/non-pay status, as appropriate, and to arrange for collection of her government property. It also directed that the Chief should coordinate with Complainant’s supervisor to address Complainant’s continued employment with the Agency. A similar memorandum was sent to the Coordinator from the Branch Chief, Personnel Security Division, Office of the Chief Security Officer, dated December 10, 2018, indicating Complainant was found to be unfit to occupy the position of IM CORE-Emergency Management Specialist. It detailed the same issues of concern, determined them to be serious and found they could not be mitigated. It also provided that Complainant’s physical access to Agency facilities and IT systems should be terminated and directed the Coordinator to coordinate with the Agency’s Labor and Employee Relations in regard to any remaining administrative, pay, and/or duty status requirements. A Notice of Termination of Appointment to Complainant from Supervisor, dated December 14, 2018, indicated that Complainant was terminated, effective December 14, 2018, due to loss of requirement of position. It provided that, on December 10, 2018, the Agency’s Personnel Security Division determined Complainant was unfit for her Public Trust position and found her ineligible for access to the Agency’s IT systems and for physical access to the Agency’s facilities without the need for an escort. It also provided that, pursuant to Agency policies, all Agency employees are required to undergo a background investigation and receive a favorable adjudication in order to be granted access to the Agency’s systems and receive credentials to be granted unescorted physical access to the Agency’s facilities. It reviewed the unfavorable findings of Complainant’s background investigation as noted in the December 10, 2018 memorandum and indicates that Complainant’s appointment would be terminated to promote the efficiency of the Federal service. 2021001122 4 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision by summary judgment on September 29, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that summary judgment was not appropriate because there are genuine disputes of material fact, including the reason for Complainant’s termination and Supervisor’s credibility. Complainant argues that, regarding the issues with her background check, those matters had been previously addressed and resolved. Regarding Supervisor’s credibility, she asserts that Supervisor had been resistant to providing her reasonable accommodations and was unhappy about the amount of time Complainant needed to be out of the office for surgery. Complainant also argues that discovery was not conducted, and the record lacked sufficient evidence. 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. 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. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Here, we find Complainant was given ample notice of the Agency's motion for a decision without a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity to respond to such a statement, and the chance to engage in discovery. 2021001122 5 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 her favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. 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 Tex. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Here, Complainant alleged that the Agency treated her disparately and with retaliatory animus when she was terminated. Even if we assume that Complainant established a prima facie case of disability discrimination and reprisal, her claim ultimately fails, as we find that the responsible officials articulated legitimate, non-discriminatory reasons for the disputed actions. Agency officials attested that Complainant was terminated because she was found unfit to hold a Public Trust clearance by the Office of the Chief Security Officer and, as a consequence, failed to meet the requirements of her position. We note that a memorandum from the Chief, Personnel Division, Office of the Chief Security Officer, details these findings and directs management to address Complainant’s continued employment with the Agency. There is no evidence to suggest that officials in the Security Officer were aware of Complainant’s reasonable accommodation request or even her disability. We recognize that Complainant has suggested that Supervisor was averse to her being absent for an extended period of time for her surgery. However, the record fails to establish by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus. 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 action. 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. 2021001122 6 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). 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. 2021001122 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 February 9, 2021 Date