Matt A., Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jul 26, 2017

0120150615 (E.E.O.C. Jul. 26, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Matt A.,
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120150615

Hearing No. 430-2014-00033X

Agency No. ARUSAR12APR01379

DECISION

Complainant filed an appeal from the Equal Employment Opportunity Commission
Administrative Judge’s (AJ) decision dated November 13, 2014, which effectively became the
Agency's final decision, pursuant to 29 C.F.R. § 1614.109(i), with regard to his 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physical Security
Specialist/Inspector, GS-0080-13, at Fort Jackson in South Carolina. On April 23, 2013, he
received notice of the Agency’s intention to revoke his security clearance because of excessive
indebtedness. He was assigned to new duties pending the resolution of the proposed revocation.
On May 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of religion (Jewish) and in reprisal for prior protected EEO activity2
when:

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.
2 The complaint initially also alleged discrimination on the bases of age and sex. Complainant
later amended the complaint, withdrawing those bases.
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1. his access to the Army Reserve Network (ARNet) was disabled;

2. his supervisor notified him that he would not be conducting Physical Security Inspections
and he would be working in the Directorate of Emergency Services (DES) office until his
security issue was resolved;

3. on numerous occasions his supervisor referred to him as “you people” and made
numerous comments about him being the only one not having served in the military;

4. his supervisor refused to acknowledge him; and

5. he was excluded from Physical Security Inspector Training.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. After both parties submitted motions for a decision without a hearing, the
AJ assigned to the case issued a decision without a hearing on November 13, 2014, finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

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 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. 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. For the following reasons, we find that this matter does not present a
genuine issue of material fact requiring a hearing.

Disparate Treatment Discrimination (Claims 1, 2, 5)

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). 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
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may be dispensed with 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 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).

Here, the Agency explains that Complainant was denied access to the Agency computer network
(Claim 1), reassigned from his normal duties (Claim 2), and excluded from training (Claim 5)
because his security clearance had been suspended. Agency policy dictated that no one with a
suspended security clearance could conduct security inspections (ROI Hearing Transcript (HT)
at 85-86), access the computer network (HT at 81, 136), or participate in inspector training (HT
at 96). These are legitimate, nondiscriminatory reasons for the Agency’s actions. 3 Complainant
does not dispute that the actions about which he complains were necessitated by his security
clearance revocation. Complainant has adduced no evidence that the Agency’s reasons are
pretext designed to conceal discriminatory animus.

Harassment (Claims 3, 4)

Complainant contends that his supervisor referred to him as “you people,” which Complainant
interpreted as a reference to Complainant’s Jewish heritage, and that his supervisor referenced
the fact that he had not served in the military. (Claim 3) Complainant also complains that his
supervisor refused to “acknowledge” him. (Claim 4) Complainant has not alleged he suffered a
personal loss or harm as a result of these incidents. The Commission has repeatedly found that
isolated remarks or comments unaccompanied by a concrete agency action are not a direct and
personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII.
See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S.
Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995).

Nor has Complainant adduced evidence that would support the conclusion that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993). Summary judgment on these claims was appropriate.

CONCLUSION

3 Complainant argues that he has made out a prima facie case of disparate treatment by
identifying non-Jewish co-workers, guilty of inappropriate behavior more serious than his own,
whose security clearances were not revoked. Complainant’s argument is misplaced. He does not
claim that the Agency’s action in revoking his security clearance was discriminatory. Therefore,
the Agency’s failure to revoke the security clearances of others is irrelevant.
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Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we affirm AJ’s decision finding no discrimination.

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.
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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

July 26, 2017
Date