Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Sep 2, 2015

01-2013-0828-0500 (E.E.O.C. Sep. 2, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120130828

Hearing No. 530-2011-00028X

Agency No. HS-10-FEMA-00011

DECISION

Complainant filed an appeal from the Agency’s final order dated November 13, 2012, finding
no discrimination with regard to his complaint alleging employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§791 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In his complaint, filed on November 5, 2009, Complainant alleged discrimination based on
disability (psychological disorder) when on August 28, 2009, he was terminated from his
position as Information Technology (IT) Specialist for misuse of government property. Upon
completion of the investigation of the complaint, Complainant requested a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). On October 5, 2012,
the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s
final order implemented the AJ’s decision.

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
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regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. 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. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged termination. During the relevant time period at issue, Complainant was
an IT Specialist, GS-12, at the Agency’s IT Support in Philadelphia, Pennsylvania.
Complainant’s duties included serving as Communication Security (“COMSEC”) officer and
COMSEC custodian; COMSEC duties were performed on a secure computer housed in a
separate, locked office.

Complainant’s supervisor (S1) indicated that Complainant’s security clearance was revoked in
April, 2009, and the COMSEC responsibilities were transferred to an Acting Specialist as the
new primary custodian.1

During the transfer on May 29, 2009, the Acting Specialist
discovered inappropriate computer visits by Complainant and reported that to S1. S1,
accordingly, investigated the matter which revealed that Complainant had visited thousands of
pornographic and inappropriate images over several years. i.e., 2,619 hits on pornographic
sites and 7,903 hits on non-work related sites in less than two months and 227 pornographic
and 1,512 inappropriate images saved in his three computers. Complainant did not deny the
foregoing. S1 indicated that on June 26, 2009, S1 issued Complainant a notice of proposed
removal for his misuse of government property for downloading from various internet sites,
numerous materials and pictures considered to be offensive (sexual) in nature to both his desk
computer and the COMSEC. Subsequently, on August 21, 2009, Complainant was issued a
notice of removal effective August 28, 2009.
Complainant claimed that he submitted a letter dated July 16, 2009, indicating that his
misconduct was caused by his psychological disorder and he was now seeking therapy.
However, we find no evidence that Complainant informed the Agency of his purported

1 It is noted that Complainant’s revocation of his security clearance is not a live issue in the
instant case.
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condition prior to his misconduct in violation of the Agency’s policy. The Agency noted that
Complainant was allowed to retire effective August 29, 2009, in lieu of termination.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that he was denied a
reasonable accommodation and that he was required to perform his duties beyond his medical
restrictions. There is no evidence that Complainant informed the Agency of his claimed
disability and requested a reasonable accommodation prior to the alleged misconduct. Upon
review, we find that Complainant failed to show that he was treated less favorably than a
similarly situated employee under similar circumstances or that the Agency’s reason for
terminating him was a pretext for discrimination. Based on the foregoing, we find that
Complainant failed to show that the Agency’s action was motivated by discrimination as he
alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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
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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 (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 Complainants 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 2, 2015
Date