[Redacted], Tyree B., 1 Complainant,v.Lauren M. McFerran, Chairman, National Labor Relations Board, Agency.

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2021002833 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyree B.,1 Complainant, v. Lauren M. McFerran, Chairman, National Labor Relations Board, Agency. Appeal No. 2021002833 Agency No. HDQ-20-07 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 12, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Associate Chief Information Officer at the Agency’s Headquarters in Washington, DC. On June 19, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity when the Agency issued him a five-day suspension on April 27, 2020. 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. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed 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. 2021002833 2 to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. In its final decision, the Agency found that Complainant was issued the five-day suspension because the Agency’s Office of the Inspector General (OIG) found that, in Complainant’s role as Contracting Officer’s Representative with a contractor providing security assessment services, Complainant was responsible for a number of false statements the contractor made about projects delivered to the Agency. The Notification of Proposal to Suspend charged Complainant with “Negligent Performance of Duties, Negligent Supervision, and Lack of Candor” in relation to his work with the contractor. The OIG had conducted an audit of the contractor after it had provided a security assessment to the Agency. The audit showed the contractor had included false or misleading information in its assessment and that Complainant had approved invoices for work that was not completed. As a result, the OIG initiated an investigation into Complainant’s conduct. Complainant’s direct supervisor, Deputy Chief Information Officer (DCIO), indicated that the OIG investigation report showed emails from Complainant signing off on “false invoices.” The OIG report also found “[t]here were funds not being exhausted and there were invoices signed by Complainant for work that was not approved” and “that the work done by [the contractor] was not valid.” After the OIG’s investigation was complete, the Inspector General (IG) submitted the report to Complainant’s office. DCIO met with an Agency Special Counsel and an employee from the Office of Human Resources to discuss whether there was a need for disciplinary action against Complainant in light of the OIG report and what options were available. Based on this meeting, DCIO proposed the 5-day suspension. This recommendation was sent to the deciding official (DO), Chief of Staff and Special Counsel to the Agency’s then-Chairman, who agreed with the recommendation. Complainant was given “an opportunity to respond and protest the notice of disciplinary action.” When he failed to do so, the Agency imposed the discipline. Complainant maintained that the suspension was retaliatory because he participated in an EEO complaint another employee filed against the IG and because Complainant had filed his own EEO complaint against the Agency. In support of this argument, Complainant pointed to the fact that the investigation took two years to complete; that the OIG did not interview the Chief Information Security Officer (CISO), who was the “technical point of contact” for the contractor; and that Complainant’s attorney at the time of the investigation, who spoke with the IG over the phone, heard the IG say during the conversation that CISO was “primarily responsible” for the matter. The Agency concluded that Complainant had “failed to establish that the legitimate, nondiscriminatory reasons provided by the Agency were a pretext to mask retaliatory animus.” First, the Agency found that “[t]he record is devoid of any expression” by the IG or other management officials “of animosity about the Complainant’s EEO activity.” The Agency also found that the OIG investigation took about two years to complete because of its complexity, Complainant’s “extended unavailability” during the investigation, and the fact that the investigation was initially classified as a criminal investigation, “which required extensive 2021002833 3 coordination with outside law enforcement and prosecutorial agencies,” including the Department of Justice. Once the investigation was reclassified as only an administrative investigation, CISO was no longer an Agency employee at that time and could not be interviewed. In sum, the Agency found that the record did not contain any evidence of retaliatory animus and that Complainant could not establish that the Agency’s legitimate, nondiscriminatory reasons for his suspension were pretextual. 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”). Assuming Complainant established a prima facie case of retaliation, we find that the Agency provided legitimate, nondiscriminatory reasons for why Complainant was issued the five-day suspension. The OIG’s report of the investigation into Complainant, on which DCIO and DO relied in making their decision about Complainant’s suspension, indicated that Complainant had approved false invoices, failed to review the contractor’s documentation, and ultimately “approved payments to [the contractor] totaling $99,000 for services that [the contractor] did not perform but nonetheless billed the Agency.” Their decision to discipline Complainant was based solely on the OIG’s report, and Complainant did not offer a rebuttal or defense to the proposed suspension at the time. We also find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in this matter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2021002833 4 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). 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, 2021002833 5 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 27, 2022 Date