Mana H.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 16, 2020

2020004008 (E.E.O.C. Sep. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mana H.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020004008 Agency No. FBI-2016-00225 DECISION On June 11, 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 May 14, 2020 final decision concerning her equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant was a candidate for employment with the Agency’s National Security Branch, Weapons of Mass Destruction Directorate facility in Washington, D.C. On July 13, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (post-traumatic stress disorder), 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. 2020004008 2 age (54), and in reprisal for prior EEO activity2 when she learned on April 20, 2016 that she was not selected for the position of Management Program Analyst, GS-14. The Agency accepted the complaint and conducted an investigation into its claims. In sum, the evidence developed during the investigation reflects that from November 2013 to November 2014, Complainant was employed by Culmen International, a private company contracted to work for the Agency as a subject matter expert in the area of veterinary microbiology, biological weapons of mass destruction and agro-terrorism. The record further reflects that in November 2014, Culmen International lost its contract with the Agency. At that time, the Agency’s Chief sought to convert Complainant’s contractor position to a full-time federal employee position with the Agency’s Federal Bureau of Investigation, (FBI). Complainant’s employment with the Agency was, however, contingent upon the successful completion of a background investigation to determine if she met suitability requirements for FBI employment. A federal investigator from the Agency’s Personnel Security Investigations Unit was assigned to conduct Complainant’s background investigation. The record reflects that once background information is collected, the matter is then assigned to a Personal Security Specialist (PSS) for adjudication to determine if a candidate meets suitability and security standards. The PSS assigned to determine Complainant’s suitability for the position at issue, indicates that as a standard practice, she reviews a candidate’s information for any derogatory information evaluating information pursuant to the FBI’s suitability standards, and then pursuant to the Agency’s security standards. If a problem is identified, the PSS then looks to see if the issue can be mitigated by other information gathered. The PSS then makes an adjudicative decision, and writes a report which is submitted for supervisory approval. In the instant matter, the PSS reviewing Complainant’s background information indicated that she found derogatory information regarding Complainant’s employment at Culmen International. The PSS determined that Complainant did not meet the suitability standard of “failure to provide pertinent and/or accurate information or relevant facts/employment history.” The Agency determined that Complainant’s background investigation disclosed reports of possible time and attendance irregularities and abuse, insubordination, and a supervisor’s description of Complainant as “uncooperative and exhibiting questionable behavior.” Consequently, the PSS recommended that Complainant’s suitability review be discontinued, and Complainant was not selected for the position of Management Program Analyst. After an 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. 2 The record indicates that the Agency dismissed Complainant’s claim of reprisal because there was no record evidence that Complainant had previously engaged in prior EEO activity. The record does not indicate that Complainant or her attorney objected to the Agency’s dismissal of reprisal in this matter. In that regard, the Commission will not address the Agency’s dismissal of reprisal as a basis for alleged discrimination in the instant decision. 2020004008 3 Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. This appeal followed. 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”). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For 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 Construction 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 Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant matter, Complainant contends that the statements made by employees of Cullen International were false and were motivated by discriminatory animus toward her protected classes. Complainant alleges that FBI employees similarly harassed and discriminated against her because of her age and sex. 2020004008 4 Specifically, Complainant alleges that her former colleagues and FBI employees were motivated to lie about her because she was the only woman at Cullen International qualified to perform the work under its contract with the FBI and because she was the oldest woman working on the contract at the Agency facility. Complainant further alleges that the Agency knew that the statements her former employer made about her were false and that it based its unsuitability determination on false information. Upon review, however, we find that the Agency articulated legitimate, non-discriminatory reasons for its conduct. According to the Agency witnesses, Complainant was not-selected for the Management Program Analyst position following an investigation into her background which disclosed derogatory information about her prior employment history. The record indicates that the owner of Culmen International, Complainant’s prior employer (hereinafter referred to as Owner), acknowledged that he did not question Complainant’s knowledge or work product. The Owner, however, found Complainant to be a “manipulative and uncooperative employee.” Owner further indicated that he had concerns with Complainant’s behavior, the disrespect she showed to company superiors and added concerns regarding her billing practices including her charges for unauthorized overtime. Moreover, Owner stated that when he counseled Complainant for her failure to follow company policies she was on occasion “non-responsive and combative.” The record also includes statements from an administrative employee of Cullen International, who oversaw the company’s contract with the FBI and was responsible for signing Complainant’s time cards. The employee indicated that Complainant was uncooperative regarding the hours she worked, and that he found her undependable and unreliable with regard to her attendance and timeliness in reporting to work. He also found Complainant to be “menacing” when dealing with authority and was often overly defensive when advised that she had violated company policy in any way. Beyond her bare assertions, Complainant has provided no evidence that the Agency’s articulated reasons for rescinding the conditional offer of employment for the Management Program Analyst position was pretext for discrimination on any alleged basis. While Complainant appears to argue that the allegations about her former colleagues were motivated by discrimination, she provides inadequate evidence to support her claims. The only issue in the instant complaint is whether the Agency’s conduct in not selecting her for the position at issue herein was discriminatory. There is no evidence of record that Complainant was subjected to discrimination as alleged or that the Agency’s articulated reasons for its conduct were pretext to unlawful discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 2020004008 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2020004008 6 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 September 16, 2020 Date