0120132816
05-19-2015
Complainant, v. John Kerry, Secretary, Department of State, Agency.
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120132816
Agency No. DOS-F-050-12
DECISION
On July 22, 2013, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from a final Agency decision (FAD) dated June 24, 2013, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-11, at the Agency's Bureau of Information Management in Washington, DC.
Complainant filed an EEO complaint, as amended, dated February 22, 2012, alleging that the Agency discriminated against him based on his race (Black), color (Brown), and reprisal for prior protected EEO activity under Title VII when:
1. On November 29, 2011, his security clearance was suspended.
2. Effective March 16, 2012, the Agency indefinitely suspended his employment.
3. On June 6, 2012, his security clearance was revoked.1
On February 3, 2011, Coworker 1 (Caucasian)(prior EEO activity) reported Complainant, inter alia, to his second line supervisor (S2)(who was also Coworker 1's first or second line supervisor). Coworker 1 initially asserted that Complainant escalated a disagreement about the assignment of work tickets by screaming at him in a threatening tone.
S2 interviewed Complainant and Coworker 1 separately and together. Therein, Coworker 1 added that Complainant called him a "mother fucker," "cock sucker," and "faggot." S2 wrote that Complainant asked Coworker 1 what he supposedly said, and Coworker 1's reply was not forthcoming - saying "you know what you said." Complainant denied calling Coworker 1 any of the above terms. On February 4, 2011, S2 reported the incident and his interview to the Bureau of Diplomatic Security (Security), Office of Professional Responsibility for action/investigation.
Thereafter, Security conducted an investigation, resulting in a report of investigation dated March 12, 2011, written by the reporting investigator (investigator), whose determinations were approved by his Security Special Agent in Charge. The investigator found that it was inconclusive whether Complainant made any inappropriate or threatening remarks or exhibited any threatening behavior toward Coworker 1. In finding this, the investigator took into account Complainant's denials, and that Coworker 1 previously accused two others of threatening confrontations resulting in Security investigations in 2004 and 2008 with findings that his accusations were unsupported and Coworker 1 did not have harmonious relationships with his colleagues and contractors (2004), and there were issues with his trustworthiness and suitability as an Agency employee (2008).
The investigator found, however, that Complainant admitted he had a history of inappropriate conduct the workplace - arguments of varying degrees with at least seven Agency employees where he shouted and used epithets. The investigator gathered information showing a number of coworkers and managers indicated, wrote or stated Complainant was short tempered, combative, defensive, and confrontational. The investigator took note that Complainant had handguns at home, and his personal vehicle license plate was IY CRTFY - "if you can read this, fuck you." Contemporaneous emails and memos from various people described several incidents in 2009 where Complainant was very confrontational. The investigator determined that Complainant's admission of prior inappropriate conduct in the work place may violate the Agency's policy against "Workplace Violence."
Prior to the completion of the Security investigation, the investigator pressed Complainant to make a counseling appointment with the Agency's Office of Medical Services, Mental Health Services (Medical Services). In February 2011, the investigator wrote Medical Services that he interviewed Complainant regarding an alleged "Workplace Violence" incident, and while he denied it occurred, Complainant said he had handguns at home, admitted to arguments with seven employees, said he was told by various people he had an anger management problem, and of the license plate matter. The investigator indicated Complainant reluctantly agreed to counseling, and Complainant asked him to find contact information for doing so, the purpose of the letter. Report of Investigation (ROI), at 361. The record suggests Complainant did not make an appointment.
Thereafter, by letter to Complainant dated May 6, 2011, the Chief of the Adverse Actions Division, Office of Personnel Security and Suitability (PSS), which is part of Security, advised that after PSS referred his case to Medical Services under an Executive Order (regarding security requirements for government employees), Medical Services requested to evaluate him. The PSS Director later explained that Complainant's case was referred to Medical Services based on the allegation of "workplace violence" and multiple instances of shouting in the workplace. ROI, at 146. The Director of the Diplomatic Security Service, which is part of Security, stated Medical Services determines which cases need formal review. ROI, at 239.
The Chief in the above letter directed Complainant to contact Medical Services to schedule an appointment within two weeks, and warned him not doing so could have negative consequences regarding his security clearance. Complainant refused to undergo a medical evaluation by Medical Services without his union representative being present, which it would not permit. At some point Complainant argued that he was entitled to union representation under arbitration decision AFGE Local 596 v. Department of Justice, Federal Bureau of Prisons, Grievance No. 06*540089I, which was decided around 2007. A reading of the decision reveals it does not contain a bright line right to union representation at a fitness for duty examination (FFD). Rather, the right depends on the individual circumstances surrounding the FFD, a matter of interpretation. ROI, at 487 - 493.
By letter to Complainant dated August 2, 2011, the Director of PSS reminded Complainant of the May 6, 2011, letter, directed him to contact Medical Services within 10 days to schedule a medical evaluation to complete the evaluation process, and warned him that failure to cooperate would result in a recommendation to suspend his security clearance for unwillingness to complete the security clearance process. Complainant continued to refuse to submit to a Medical Services evaluation without the presence of a union representative.
In a letter to Complainant dated November 29, 2011, the PSS Director notified him that he suspended his security clearance on the grounds that his access to classified information was not in the best interest of national security. The Director explained that Complainant's failure to comply with directives to complete a Medical Services evaluation raised serious security concerns and can be disqualifying under Personal Conduct.
By letter to Complainant dated December 9, 2011, the Agency's Director of the Office of Employee Relations in the Bureau of Human Resources proposed indefinitely suspending his employment for failure to maintain a security clearance, which was required by his job. By letter to Complainant dated March 16, 2012, the Deputy Assistant Secretary for the Bureau of Human Resources sustained the proposal, suspending Complainant without pay effective March 16, 2012.2
In a letter to Complainant dated June 6, 2012, the Director of the Diplomatic Security Service concurred with the PSS recommendation to revoke Complainant's security clearance, and it was revoked. The Director cited Complainant's conduct. This referred to his noncompliance to report to Medical Services for an evaluation. ROI, at 238, 267.
In contending that he was subject to discrimination, Complainant averred that knowing Coworker 1 was unreliable, S1 referred the February 3, 2011, incident to Security. He contended that the investigator portrayed him as an "angry black man," which led to the subsequent actions. Complainant pointed to Coworker 1's conduct, which was revealed in the investigation, and questioned why Security did not take action against him.
For example, the 2004 security investigation, which was prompted by Coworker 1 accusing a contractor of acting in a threatening manner toward him, found his allegations were unsubstantiated, and included a contract supervisor's statement that he witnessed Coworker 1 loudly and openly belittle a contract employee, and when he raised this with him, Coworker 1 shot up from his chair, yelled, and stormed out. Also, the 2008 security investigation, prompted by Coworker 1 accusing another of addressing him in a threatening manner, found his allegations were unsupported (in fact videotape seemed to contradict his account), he failed to disclose the 2004 security investigation, and several witnesses raised issues concerning his trustworthiness and suitability. Witnesses gave examples of Coworker 1 being untruthful, and his security file revealed accusations by his ex-wife that he kicked her in the stomach and threatened to take their daughter out of the country if she reported it, his temper worsened with alcohol, and he attended anger management counseling. It also revealed multiple arrests for driving under the influence, a loan delinquency, and a prior background investigator finding it appeared Coworker 1's failure to provide complete and honest answers in connection with his personnel security investigation raised a question about his judgment. According to the 2008 security investigation, Coworker 1's supervisor at the time (not S2) said he previously contacted PSS to lodge concerns about Coworker 1's suitability, but never heard back. The 2008 investigator wrote that Coworker 1's personnel security file contained no such reference.
In its FAD, the Agency found no discrimination. It found that Complainant failed to establish a prima facie case of race and color discrimination because Comparison 1, along with other comparative employees he mentioned, did not refuse to comply with instructions in the security clearance process. Further, the PSS Director who suspended Complainant's security clearance, the Director of the Diplomatic Security Service who revoked it, and the Director of the Office of Employee Relations who proposed indefinitely suspending Complainant's employment did not know his race and color. The Agency found that Complainant did not make out a prima facie case of reprisal discrimination because, in part, the above officials, as well as the Deputy Assistant Secretary for the Bureau of Human Resources, who sustained the proposed indefinite suspension and S1 all stated they were unaware of Complainant's prior EEO activity.
The Agency found that assuming for purposes of analysis that Complainant established prima facie cases of race, color, and reprisal discrimination, it articulated legitimate, nondiscriminatory reasons for its actions - his security clearance was suspended and revoked because he did not comply with the security clearance process by refusing to take the directed medical examination, and his employment was suspended because his position required a security clearance.
On appeal, Complainant argues that he is similarly situated to Coworker 1 and other comparative employees he raised (who he focused on less). He argues that the Director of PSS did not recommend Coworker 1 for a medical evaluation even though he was aware of his misconduct (from reading the 2011 Security Investigation), and the Director of Diplomatic Security Service was also aware of this misconduct from reading the same investigation. Complainant argues that management officials were aware of his prior EEO activity. He notes that he initiated EEO counseling on the current complaint on January 12, 2012, the Agency received his complaint in February 2012, and he submitted his affidavit thereon in May 2012, prior to the decisions to indefinitely suspend his employment on March 16, 2012, and to revoke his clearance on June 6, 2012. The two above deciding officials stated they had no knowledge of Complainant's participation in the EEO process prior to the instant complaint, but did not state when they became aware of the instant complaint. ROI, at 197, 235. Complainant also argues that he opposed discrimination in his written and oral responses to the proposed indefinite suspension of his employment, respectively, on December 12, 2011, and January 17, 2012. This appears to relate to his argument that he was denied the right to union representation. Complainant also contends, as he did below, that Coworker 1 filed a complaint alleging he discriminated against him in connection with the February 3, 2011, incident, that the EEO counselor contacted him, and this constituted EEO activity.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnace Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since 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 Affairs, 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).
The Agency explained that it suspended and revoked Complainant's security clearance because he did not cooperate with the security clearance process by refusing to have a Medical Services evaluation, and his employment was suspended because his position required the clearance.
Complainant argues that this is pretext to mask discrimination. He points to S2 referring the February 3, 2011, incident to Security even though he knew Coworker 1 was unreliable. We note that in S2's summary of his interviews which he gave to Security with his referral, S2 observed Coworker 1 was not forthcoming. When the security investigator later interviewed S2, he said Complainant was typically a very honest person, even when he has done something wrong. Nevertheless, given the allegations Coworker 1 made, it was reasonable for him to refer the matter to Security, Office of Professional Responsibility to sort things out. We note that when Coworker 1 accused others of threatening conduct, his accusations were referred to Security and investigated in 2004 and 2008.
The record does not reflect who, precisely, made the decision to refer Complainant to Medical Services for an evaluation in order for him to maintain his security clearance. But PSS Director wrote this was done based on the allegation of "workplace violence" and multiple instances of shouting in the workplace. The record suggests that the security investigator had something to do with this since he pressed that Complainant receive counseling with Medical Services prior to the completion of the investigation and concluded in the Security investigative report that Complainant's admission of prior inappropriate conduct -- arguments with at least seven employees of varying degrees where he shouted and used epithets may be a violation of the Agency's policy against "Workplace Violence." A review of the investigator's memorandum of interview with Complainant, upon which this assessment was based, reveals this assessment was exaggerated. Complainant admitted to three or four specific instances where he raised his voice with others, and one instance of calling a person a bitch, which the investigator referred to as an epithet, not seven. Complainant also generally said he had gotten loud with some of his colleagues, and referenced other confrontations, such as hanging up the phone on an Office Director customer which caused a firestorm.
Complainant's position, in essence, is that had he not been discriminatorily subject to the clearance process which included being referred to Medical Services to maintain his security clearance, he would not have lost his clearance and been indefinitely suspended from his employment. We find Complainant has not proven discrimination. We have already found that the initial referral to Security was not discriminatory. The impetus of the Security investigation was Coworker 1's complaint, which put Complainant more under the spotlight. A number of coworkers and managers indicated, wrote or stated Complainant was short tempered, combative, defensive, and confrontational, and Complainant corroborated this in his own admissions. The evidence of similar behavior by Coworker 1 was not as prominent and strong.
Complainant also argues, in essence, that he had a right to refuse a Medical Services evaluation because it would not permit him to have a union representative during the evaluation. Even if he had the right to such representation, which we don't have jurisdiction to rule on, the arbitration decision he relied upon in making this argument to the Agency was unclear. Given this, Complainant has not shown the Agency should have known it had no right to direct him to undergo a Medical Services evaluation without a union representative.
Complainant raised other comparative employees, but we find he was not similarly situated to them. Complainant's refusal to cooperate with the security clearance process, for example, was uniquely significant.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 19, 2015
__________________
Date
1 Complainant also alleged that he was discriminated against when he was denied the right to union representation at a medical evaluation the Agency directed he undergo in connection with maintaining his security clearance. The Agency dismissed this issue for failure to state a claim. On appeal, Complainant does not address this matter. Accordingly, we will not address this matter as an independent issue. But we will address it in connection with Complainant's explanation for why he refused to undergo a medical examination which led to the revocation of his security clearance.
2 By letter dated May 16, 2012, the Deputy Assistant Secretary for the Bureau of Human Resources rescinded Complainant's employment suspension, and retroactively placed him on paid administrative leave based on the Merit Systems Protection Board (MSPB) decision of McGriff v. Department of the Navy (April 26, 2012), which the Agency decided to review as it involved a suspension based on failure to maintain a security clearance. The record does not reflect if Complainant's status has changed.
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0120132816
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132816