[Redacted], Raphael C., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 13, 2021

Appeal No. 2020004229 (E.E.O.C. Dec. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raphael C.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004229 Hearing No. 570-2019-01132X Agency No. AREUBAV18OCT04080 DECISION On June 30, 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 final action 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. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a GS- 0303-7 Antiterrorism Assistant at the Agency’s Garrison Bavaria facility (Garrison) in Hohenfels, Bavaria, Germany. The Antiterrorism Assistant position required a Secret level security clearance. Report of Investigation (ROI) at 126-31, 204. Complainant had previously engaged in protected EEO activity in 2017 when he contacted an EEO Counselor, alleging that he was subjected to discrimination based on race when his former supervisor counseled him in March 2017. 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. 2020004229 2 Complainant stated that he again contacted an EEO Counselor in 2017, when the Directorate of Emergency Services tried to charge him with assault after a September 2017 incident and submitted paperwork to the Security Office regarding the assault charges. According to Complainant, he signed a settlement agreement resolving both matters, but he alleged that the Agency breached the negotiated settlement agreement. ROI at 120-21, 205-07. Complainant alleged that, after the alleged September 2017 assault, a Security Specialist received paperwork to have Complainant’s security clearance flagged. Complainant stated that the outcome of the investigation into the alleged assault was in his favor. The record contains a December 5, 2017, Commander’s Report of Disciplinary or Administrative Action on a referral for Complainant as the offender for a September 29, 2017, assault. The report states that no action was taken and that adjudication was in favor of Complainant. Complainant averred that the Security Specialist told him that, because his security clearance had been flagged, he could no longer access classified material, and the Department of Defense Consolidated Adjudications Facility (DOD CAF) had indicated that Complainant needed to get a mental evaluation. According to Complainant, the Security Specialist directed him to be examined by a clinical psychologist at the Hohenfels post (Doctor-1) and portrayed the arrangement as favorable because Complainant would not need to pay out-of-pocket for the evaluation. ROI at 205-07, 303-09. The Security Specialist denied directing Complainant to do anything. According to the Security Specialist, the DOD CAF sent her instructions to deliver a memorandum to Complainant, inform him that the DOD CAF was requesting that he have a mental evaluation, and obtain acknowledgment of the request and whether Complainant would complete the evaluation as requested. The Security Specialist stated that Complainant had the choice of having an evaluation at a military health clinic, having an evaluation performed by his own doctor, or not participating in an evaluation. The Security Specialist averred that, when Complainant chose to have an evaluation at a military clinic, she scheduled an appointment for Complainant and hand- delivered a memorandum and enclosures from the DOD CAF to the clinical psychologist performing the evaluation. According to the Security Specialist, the DOD CAF had instructed her that only the clinical psychologist performing the evaluation could see the enclosed documents. ROI at 232-34. On March 14, 2018, Complainant had his mental evaluation with Doctor-1. According to Complainant, Doctor-1 told him that he had been instructed not to share any medical diagnosis with Complainant and that he would provide the results to the DOD CAF through the Security Specialist. Doctor-1 stated that he received written instructions from the DOD CAF that he should not discuss his findings with anyone other than the DOD CAF. ROI at 207-08, 243-44. In August 2018, Complainant received a memorandum with the following subject line: Intent to Revoke Access to Classified Information and/or Assignment to Duties that have been Designated National Security Sensitive. Complainant’s first and second-line supervisors were present when the Security Specialist provided him with the memorandum from the DOD CAF. 2020004229 3 Complainant stated that, based on the accompanying Statement of Reasons (SOR), the memorandum was issued to him because of the alleged assault in September 2017. Complainant alleged that he received the memorandum as retaliation for his prior protected EEO activity. Complainant averred that, because he complained that the SOR indicated that he had been diagnosed with an alcohol problem even though he did not drink, it was recommended that he seek a second opinion mental evaluation. The record contains a copy of the SOR, which states that, in March 2018, Complainant was diagnosed with alcohol use disorder and antisocial personality disorder. On October 9, 2018, Complainant had a second evaluation with another clinical psychologist based at the Agency’s clinic in Ansbach, Germany (Doctor-2). According to Complainant, when Doctor-2 sent him the results of her evaluation, she also provided him with information added to his medical records by Doctor-1. ROI at 40-45, 48-70, 210-13, 225- 26, 235, 251-53, 296-99. Complainant stated that, when he received these documents from Doctor-2, he learned that Doctor-1 had inserted a “derogatory medical diagnoses” in his medical records without his knowledge. Complainant averred that Doctor-1 falsely diagnosed him with a drinking disorder and a psychological problem. Complainant questioned how Doctor-1 could make these diagnoses without further testing and without informing Complainant about the diagnoses. According to Complainant, Doctor-1 was biased against him. Complainant averred that Doctor-1 “was trying to portray me as a lunatic to [get] my security clearance revoked.” ROI at 207. According to Complainant, the Security Specialist provided derogatory information to Doctor-1 and told Doctor-1 not to tell Complainant about the results of the mental evaluation. Complainant alleged that the Security Specialist and the Security Office “chose to go into my background and pulled up a bunch of stuff that was in my past that was already adjudicated.” ROI at 207. According to Complainant, he later found out that Doctor-1 had been provided information about his family and military background, as well as information about the assault charges that had been found to be baseless. Complainant alleged that this was retaliation for his prior EEO complaint, stating that his EEO activity brought negative attention to the Garrison and that he had heard that people were upset that he had filed EEO complaints. ROI at 206-14. The Security Specialist’s supervisor, the Command Security Manager, stated that the Security Office serves as a liaison between the DOD CAF and personnel at the Garrison, characterizing the Security Office as “mailmen.” The Command Security Manager stated that there was no organizational relationship between the Security Office, DOD CAF, Doctor-1, and/or Doctor-2. The Command Security Manager denied that the Security Specialist directed Complainant to see Doctor-1. According to the Command Security Manager, the DOD CAF requested that Complainant undergo a mental evaluation and, when Complainant chose to undergo the evaluation, the Security Specialist coordinated a date and time for the evaluation at the Hohenfels Clinic. The Command Security Manager averred that the Security Specialist provided Doctor-1 with written instructions from the DOD CAF and asked him to tell her when he was done with his evaluation so she could deliver it to the DOD CAF. ROI at 219-23, 227, 229. 2020004229 4 Doctor-1 stated that he followed the same procedure for his evaluation of Complainant as other mental evaluations referred by the DOD CAF. Doctor-1 averred that, prior to the March 14, 2018, evaluation, he received a sealed envelope from the Security Specialist that contained a memorandum and more than 30 pages of records related to Complainant’s history, including incident reports and other documentation related to legal or behavioral transgressions. Doctor-1 added that, through Agency software, he also had access to Complainant’s military medical records. Doctor-1 stated that based on the records provided by the DOD CAF, medical records, his interview with Complainant, and psychological testing, he sent a detailed report to the DOD CAF on April 4, 2018, recommending against giving Complainant a security clearance. Doctor-1 averred that the report summarized his clinical impressions, DSM-V diagnoses, and the prognosis for Complainant moving forward. Doctor-1 added that he answered specific questions from the DOD CAF regarding the risk of defect in functioning, judgment, reliability or stability, the likelihood of Complainant complying with prescribed treatment and the effects of non- compliance, and the extent of his current alcohol abuse. According to Doctor-1, it was inappropriate for another mental health professional to release his report to Complainant. ROI at 244, 248-49. According to the Command Security Manager, she first learned about Complainant’s EEO activity in or around March 2018, when she was contacted about documentation provided to the DOD CAF regarding Complainant’s negotiated settlement agreement. The Security Specialist stated that she first learned that Complainant had engaged in protected activity in November 2018, when she was informed that she had been identified as a witness for the instant EEO complaint. Doctor-1 averred that he first learned about EEO activity on November 1, 2018. Doctor-2 stated that Complainant brought up his EEO activity during his October 9, 2018, evaluation. ROI at 220-21, 231, 242-43, 252. Complainant requested through the Bavaria Health Commander to have Doctor-1’s diagnoses removed from his medical records. The Bavaria Health Command subsequently approved Complainant’s request to remove Doctor-1’s diagnoses and expunge “all of the derogatory information” in his medical record. On January 22, 2019, the DOD CAF determined that Complainant was eligible for a Secret security clearance. ROI at 197, 214-16, 280-84, 300-01. Procedural History On November 27, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when: 1. On March 14, 2018, he was seen by Doctor-1 for a mental evaluation, as directed by the Security Specialist, and Doctor-1 was instructed not to discuss Complainant’s medical diagnosis with Complainant; 2. On August 7, 2018, he received a memorandum with the following subject line: Intent to Revoke Access to Classified Information and/or Assignment to Duties that have been Designated National Security Sensitive; and 2020004229 5 3. On October 9, 2018, he received a second opinion from Doctor-2, with results from the previous assessment with Doctor-1 and an assessment from Doctor-2. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On April 2, 2020, the AJ assigned to the case issued a Notice of Intent to Issue a Decision without a Hearing and provided the parties with an opportunity to respond. The AJ advised that, to successfully oppose summary judgment, a party would need to offer specific evidence establishing a genuine issue of material fact. The AJ also stated that, if the evidence establishing the genuine issue of material fact was not already in the investigative record, the party should include the relevant documentary evidence, witness statements, or other supporting materials with their response. In his opposition to the AJ’s Notice, Complainant argued that a decision without a hearing was inappropriate because the AJ had not issued an Acknowledgment and Order or held an Initial Conference. Complainant also contended that he had not been afforded the opportunity to engage in discovery. According to Complainant, he needed to supplement the record and a hearing was needed to make credibility determinations. On May 13, 2020, the AJ issued a decision without a hearing over Complainant’s objections. The AJ found that there was no evidence in the record of a retaliatory motive, noting that the Security Specialist, Doctor-1, and Doctor-2 were not aware of Complainant’s prior protected activity at the time of events giving rise to the instant complaint. The AJ further found that, even viewing the allegations in the light most favorable to Complainant, there were no genuine issues of material fact as to whether he was subjected to harassment or discrimination based on reprisal. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant did not establish that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL On appeal, Complainant contends that he was improperly denied due process. According to Complainant, the AJ never issued an Acknowledgment and Order, never held an Initial Conference, and rushed to close Complainant’s case before there was any discovery. Complainant notes that he was pro se for most of the hearing process. Complainant asserts that he has a right to discovery pursuant to 29 C.F.R. § 1614.109(g). Complainant also argues that the AJ needs to examine the credibility of the witnesses at a hearing. Complainant requests that the matter be remanded so he can conduct discovery and supplement the record and an AJ can hold a hearing. 2020004229 6 In response to Complainant’s appeal, the Agency requests that the Commission affirm its final action fully implementing the AJ’s decision. ANALYSIS AND FINDINGS 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant generally asserts that discovery is needed so that he can supplement the record and that a hearing is necessary to assess the credibility of the witnesses. Complainant also contends that the hearing process was defective because he was not afforded discovery and because the AJ did not issue an Acknowledgment and Order or hold an Initial Conference before issuing the Notice of Intent to Issue a Decision without a Hearing. 2020004229 7 We carefully reviewed the record and find that it is adequately developed. Regarding Complainant’s procedural objections, EEOC Regulation 29 C.F.R. 1614.109(g)(3) states, in relevant part, “If the administrative judge determines upon his or her own initiative that some or all facts are not in genuine dispute, he or she may, after giving notice to the parties and providing them an opportunity to respond in writing within 15 calendar days, . . . issue a decision without holding a hearing.” Upon review, we find that the AJ appropriately gave notice to the parties and an opportunity to respond. The AJ’s Notice described the legal standard for summary judgment and Complainant’s substantive burden of proof, laid out the undisputed facts, and stated that she intended to issue summary judgment because, after viewing the evidence in the light most favorable to Complainant, there were no genuine issues of material fact and Complainant could not establish that he was subjected to discrimination based on reprisal. The AJ’s Notice clearly stated that no hearing would be held unless a party identified specific evidence indicating the existence of a genuine issue of material fact and explained that the parties needed to specifically cite to that evidence in the record or provide it with their response. The AJ granted Complainant’s request for an extension to respond to the Notice after he became represented by an attorney. However, Complainant’s response, which was submitted by his attorney, failed to specifically identify any genuine issue of material fact, failed to specifically identify an area of the record that required further development, and failed to provide any evidence to supplement the record. Accordingly, we find that the AJ appropriately issued a decision without a hearing, and we will consider the merits of Complainant’s claims. Complainant alleged that he was subjected to discrimination based on reprisal when he was referred for a mental evaluation with Doctor-1, who was instructed by the Security Specialist not to share the results of the evaluation with Complainant, when he received a memorandum notifying him of the preliminary decision to revoke his access to classified information, and when, after seeking a second opinion from Doctor-2, he received a copy of information added to his medical records after Doctor-1’s evaluation. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veteran Affs., EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020004229 8 He must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affs., EEOC Request No. 05950842 (Nov. 13, 1997). 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 Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Reprisal claims are considered with a broad view of coverage. See Burlington N. and Santa Fe R.R. Co. v. White, 548 U.S. 53, 67-68 (2006); see also Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id., see also, Carroll, supra. We agree with the AJ that, even viewing the evidence in the light most favorable to Complainant, no reasonable fact finder could find that Complainant was subjected to discrimination based on reprisal. There is no evidence in the record establishing that the Agency’s actions were based on Complainant’s prior protected activity. 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 fully implementing the decision without a hearing finding no discrimination. 2020004229 9 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). 2020004229 10 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 December 13, 2021 Date