[Redacted], Alexander A., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 14, 2022

Appeal No. 2021002787 (E.E.O.C. Apr. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexander A.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002787 Agency No. DAL-20-0698-SSA DECISION 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 March 24, 2021 final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Claims Specialist in Corpus Christi, Texas. On September 22, 2020, Complainant filed a formal EEO complaint alleging that the Agency unlawfully retaliated against him for prior protected EEO activity. On September 29, 2020, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claim: Whether the Agency subjected Complainant to disparate treatment based on retaliation (prior EEO activity) when on July 2, 2020, management issued him a 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 2021002787 reprimand for failure to safeguard personally identifiable information (PII) in an email he sent to an EEO investigator. After an 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The Agency found that Complainant established a prima facie case of retaliation. The Agency reasoned that Complainant’s prior EEO complaint was settled on June 15, 2020 and he was issued the reprimand in question on July 2, 2020. The Agency found that it articulated a legitimate, nondiscriminatory reason for issuing Complainant the reprimand, his failure to comply with Agency policy regarding safeguarding PII. The Agency further found that Complainant failed to establish that its articulated reason for its action was pretext for retaliation. The instant appeal followed. In response, the Agency requests that we affirm its final decision finding no discrimination. 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 Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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 Dep’t of Cmty. 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). 3 2021002787 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Even assuming arguendo that Complainant established a prima face case of reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for issuing the reprimand. The record contains an affidavit from Complainant’s first-level supervisor (S1) that issued the reprimand. Therein, S1 asserts that she was forwarded a notice from the District Manager (DM) that the security unit set forth that there was a PII loss. Report of Investigation (ROI) at 101.2 S1 asserts that the security unit gets alerts when PII has been sent outside the firewall, unencrypted. Id. S1 asserts that she worked with Labor Relations to hold a Weingarten meeting with Complainant regarding the matter. S1 asserted that Complainant acknowledged sending the information to the email address, an unsecured email address.3 ROI at 102. S1 said she discussed the matter with a Labor Relations Specialist and that the PII loss involved over 200 social security numbers so the reprimand seemed warranted.4 Id. The record also contains an affidavit from the DM. Therein, the DM asserts that he received an email alert from the security unit that Complainant had sent unencrypted PII via email. ROI at 114. DM asserts that he called a named Technical Security Expert (SE) and told him that Complainant had been responding to an EEO Investigator. Id. 2 The citations to the ROI refer to the page numbers located at the top right corner of the pages of the ROI. 3 Complainant asserted that a contract EEO Investigator asked him to provide documentation to support his claim via email. ROI at 92. Complainant asserted that the documentation he provided, for the prior EEO complaint, showed the appointments he had been assigned in order to illustrate how they were allocated and that he had been given more work than other employees. Id. at 93. Complainant stated that he thought he needed to include the social security numbers to establish that the individuals were real. Id. We note that Complainant could have redacted the PII with respect to this information. In addition, as discussed herein, the information Complainant sent to an unsecured email address was not encrypted. 4 The record contains a copy of the July 2, 2020 reprimand issued to Complainant. Therein, S1 set forth that the reprimand was being issued for failure to follow policy on safeguarding PII. ROI at 149. 4 2021002787 DM asserts that that SE explained that the EEO investigator is not an Agency employee, so the information needed to be encrypted to send via email. Id. DM asserts that he turned the matter over to S1. Id. The record contains an affidavit from SE corroborating DM’s testimony. Therein, SE asserts that there is an automated program that captures emails sent outside the SSA firewall to a non- secure address with 25 or more social security numbers. ROI at 124. If that occurs, the security unit receives a notification. Id. SE asserts that he received an alert that Complainant released over 200 social security numbers. Id. SE asserted he checked the documentation to ensure social security numbers were actually involved and realized the documentation pertained to an EEO matter. Id. SE asserts that he spoke to central office and was informed that even though it was EEO related, its transmission in this fashion still violated policy. ROI at 125. SE communicated this information to DM. Id. Finally, the record contains an affidavit from a Labor Relation Specialist (LR1). Therein, LR1 asserted that she assisted S1 in handling the matter related to Complainant’s reprimand. ROI at 118. LR1 noted that transmitting 200 names and social security numbers unprotected over the web is egregious. LR1 asserts that Complainant did not protect or redact the information he supplied to the EEO Investigator. ROI at 119. LR1 asserted that for a first-time incident involving a substantial number of records issuing a reprimand is the norm. Id. Complainant failed to establish, by a preponderance of the evidence, that the Agency’s articulated reason was pretext for discrimination. While Complainant asserts other employees were treated less harshly, Complainant has failed to establish these individuals were similarly situated. S1, in her affidavit, asserts that this was her first incident of failure by an employee to safeguard PII in the Corpus Christi office. ROI at 104. While Complainant, in his affidavit, asserts that S1 should have obtained assistance from Labor Relations regarding this matter, the record, as discussed above, reflects that S1 did obtain assistance from Labor Relations and that LR1 asserted that the issuing of a reprimand is the norm with respect to these circumstances. Finally, while Complainant asserts that there was a delay in issuing the reprimand and the timing suggests retaliation, S1 asserts that there was a delay due to her ongoing conversations with Labor Relations regarding this matter and the pandemic which resulted in heavier workloads. ROI at 103. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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 5 2021002787 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, 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. 6 2021002787 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 14, 2022 Date