0120132447
07-02-2015
Complainant v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120132447
Hearing No. 420-2013-00091X
Agency No. ARREDSTON12FEB00452
DECISION
Complainant filed an appeal from the Agency's May 2, 2013, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: 1) whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ); and 2) whether the AJ properly found that Complainant did not prove that he was subjected to unlawful discrimination when he was not selected for a GS-13 Operations Research Analyst position, and management provided information about him to the Central Clearance Facility (CCF).
BACKGROUND
In early 2011, Complainant was separated from federal service but subsequently was reinstated later that year. At the time of events giving rise to this complaint, Complainant worked as a Supervisory Program Analyst, YC-0343-03, in the Army Contracting Command (ACC) at Fort Belvoir, Virginia. Complainant's YC-03 position is equivalent to a GS-15 position. Complainant applied for a GS-13 Operations Research Analyst position in the Army Material Command (AMC) at Redstone, Alabama. Complainant was not selected for the position.
In a letter dated January 17, 2012, Complainant received notice of the Agency's intent to deny his security clearance because of adverse information in his security file. The notice cited a December 2010 notice of proposed removal issued to Complainant because of his proposed suspension, delinquent debts, and memorandum of reprimand. The notice directed Complainant to complete and return a form within 10 days of receipt of the notice, and informed him that his access to classified information had been suspended pending a final decision on the matter. After Complainant explained the reasons for the information in his personnel file, his security clearance was restored.
On March 19, 2012, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), national origin (Jamaican), color (black), age (then 49) and in reprisal for prior protected EEO activity when:
1. On December 28, 2011, Complainant became aware that the Army Contracting Command Director (ACC Director) and the Civilian Human Resources Agency South Central Director (CHRA Director) provided false and misleading information to a selecting official (SO), which resulted in his non-selection for a GS-13 Operations Research Analyst position; and
2. On January 24, 2012, Complainant became aware that the ACC Director and the ACC Security Division Chief provided malicious, false, inaccurate, and misleading information to the Central Clearance Facility (CCF) in regards to adverse personnel actions, which contributed to the CCF suspending Complainant's security clearance.1
In an investigative statement, Complainant stated that he was in Leave without Pay (LWOP) status during the time he applied for the position at issue in this case. Complainant further stated he was not interviewed for the position, and he learned that information was shared with the selection panel that indicated that he had been removed from the Agency on the basis of his conduct. Complainant stated that, although he did not know who was selected for the position, he was a superior candidate because of his skills, education, ability, and performance, and that he previously had supervised the position for which he applied. Complainant stated that after speaking with a Budget Analyst at Fort Belvoir, Virginia, he learned that information was informally shared with the selection panel "through the grapevine" regarding his employment status.
Complainant also stated that he believed that the ACC Director may have led a collective effort to share misinformation with the SO and the panelists regarding his employment status. Complainant stated that they reported that he had been terminated and was ineligible for the position, which was false and misleading. Complainant stated that he believed that the misinformation was used to eliminate him from consideration for the position.
Complainant further stated that his security clearance was not due for renewal at the time, but the Security Division Chief provided a memorandum to CCF about personnel actions that were expunged from his record because of a settlement agreement. Complainant stated that the memorandum contained false, misleading, and damaging information related to his termination on the basis of falsifying a medical note. Complainant stated that the memorandum was intended to eliminate him from any government position, which contributed to his non-selection for the Operations Research Analyst position, which required a security clearance. Complainant also stated that CCF sent him a letter of "intent to deny security clearance" that requested additional information.
Complainant stated that the ACC Director, the CHRA Director, the SO, and the members of the selection panel became aware of his race, color, and sex through interactions at the Agency over the years. Complainant further stated that the ACC Director and the CHRA Director were named in his prior EEO and Inspector General complaints in September or October 2011. Complainant stated that he informed the Security Division Chief of his previous EEO activity in an email in late November 2011, but the Security Division Chief was not aware of his age or national origin. Complainant stated that none of the selection panelists were aware of his previous EEO complaints, and the SO and selection panelists were unaware of his national origin.
The ACC Director stated that she met Complainant when he was hired in 2010 and became aware of his race, color, and sex at that time. She further stated that she was not aware of and had no perception of Complainant's age or national origin. The ACC Director also stated that she was a management witness in Complainant's prior EEO complaint. The ACC Director further stated that she did not discuss Complainant's non-selection or security clearance with anyone and did not know the selection panelists. She also stated that the ACC Security Division Chief briefed her about Complainant's security clearance suspension for informational purposes after Complainant contacted ACC, but she was not involved in the selection and security clearance process. The ACC Director stated that someone informed her that, according to the Standard Operating Procedure (SOP), terminations are reported to CCF, and Complainant's personnel actions therefore had been reported to CCF. The ACC Director further stated that she has not spoken to anyone at CCF about Complainant or provided CCF with any information through the Security Division Chief.
The CHRA Director stated that she did not know Complainant and was unaware of his race, color, age, national origin, or prior EEO activity. The CHRA Director further stated that she did not have any involvement in the selection process and did not know or talk to the ACC Director or Selecting Official. The CHRA Director stated that the security clearance memorandum was created in response to a question from the Civilian Personnel Advisory Center (CPAC) regarding whether the conditions of Complainant's settlement agreement rendered him eligible for registration under the program. She stated that the information was not shared with the SO.
The SO stated that he did not know Complainant and was not aware of his race, color, age, national origin, or previous EEO activity. The SO further stated that he did not know the ACC Director and has never spoken to her. The SO also stated that he was not aware of Complainant's LWOP status, termination, or plans to resign. The SO stated that before the position at issue was advertised, he was part of the five-member selection panel formed to fill the vacancy. He stated that 56 candidates' resumes were referred, reviewed, and scored, and he only recognized one of the applicants. The SO stated that during the resume review, he asked the panelists to take a closer look at Complainant's resume because Complainant was briefly employed at the Air Force Cost Analysis Agency (AFCAA) and the Deputy Assistant Secretary of the Army Cost and Economic (DASACE). The SO also stated that the panel made it recommendations for the position, which included two Caucasian applicants and one African-American applicant.
The SO stated that Complainant's "brief employment" with other agencies raised concern, and the panelists were also concerned that Complainant was a GS-15 applying for a GS-13 position, lived in the District of Columbia, and had recent tours that were short. The SO stated that because they were looking for a worker and not a supervisor or manager, Complainant was eliminated for further consideration and not interviewed.
The Security Division Chief stated that he had never met Complainant and was not aware of Complainant's race or color but perceived that he was Chinese/Asian-American because of his surname. He stated that an Agency official contacted him about Complainant's termination from federal service, and that Agency regulations required the Office of the Deputy Chief of Staff, Intelligence (G-2) to notify CCF. The Security Division Chief stated that he was the G-2 for the command during the relevant time period.
The Security Division Chief further stated that his office received notice through "word of mouth" that Complainant had had been terminated from government service in January 2011. He stated that his office confirmed that Complainant had been terminated through official documentation. The Security Division Chief stated that Agency regulations provide that his office is required to notify CCF if an employee with a security clearance leaves government service, which it did in this case. The Security Division Chief also stated that in Summer 2011, his office was notified that Complainant had been rehired. He stated that, at that time, his office informed CCF of the reinstatement and directed CCF to reopen the investigation for his security clearance in an expedited manner. The Security Division Chief further stated that he briefed the ACC Director about this matter and that, after the investigation, Complainant's security clearance was restored April 2, 2012.
AJ's Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. On March 20, 2013, the AJ assigned to the case issued a notice of intent to issue a decision without a hearing to the parties. Complainant submitted his response that opposed the issuance of a decision without a hearing on April 19, 2013. In a summary judgment decision dated April 23, 2013, the AJ found that Complainant failed to prove that he was subjected to unlawful discrimination. Specifically, the AJ found that with regard to claim 1, Complainant did not establish a prima facie case of discrimination. Regarding claim 2, the AJ found that Complainant did not prove that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that a decision without a hearing was inappropriate in this case. Complainant argues that he personally knew "key members" of the selection panel, and one of the panelist knew about his EEO activity. Complainant reiterates his claim that the Security Division Chief kept watch over his security files and frequently told the ACC Director about Complainant's files. The Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
Summary Judgment
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing. A decision without a hearing therefore was appropriate.
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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).
The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
In this case, we first note that although Complainant contends that the ACC Director and CHRA Director provided false and misleading information to the selection panel, these allegations are evidence that supports the gravamen of claim 1, namely, that Complainant was not selected for the GS-13 Operations Research Analyst position.
For purposes of analysis and without so finding, we assume that Complainant established a prima facie case of discrimination for claims 1 and 2. Nevertheless, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, the Agency stated that Complainant's "brief employment" with other agencies raised concern. Additionally, the Agency stated that the panelists were concerned that Complainant was a GS-15 equivalent employee applying for a GS-13 position, lived in the District of Columbia, and had recent tours that were short. The Agency further stated that because they were looking for a worker and not a supervisor or manager, Complainant was eliminated for further consideration and not interviewed.
Regarding claim 2, the ACC Security Division Chief stated that his office notified CCF that Complainant had been separated from government service because it was required to do so by Agency regulations. He stated that after his office was subsequently notified that Complainant was rehired, his office informed CCF of the reinstatement and directed CCF to reopen the investigation for his security clearance in an expedited manner. The Security Division Chief further stated that after the investigation, Complainant's security clearance was restored April 2, 2012.
In an attempt to prove pretext, Complainant argues that Agency mischaracterized the circumstances surrounding his separation from the Agency. However, Complainant has not provided any evidence that reflects that the alleged mischaracterization was related to his race, color, age, national origin, or EEO activity. Moreover, the record reflects that Agency regulations required the Security Division to notify CCF if it became aware that an employee with a security clearance had been separated from the Agency. We determine that Complainant has not provided any evidence from which it could be concluded that the Agency's non-discriminatory reasons for its actions were pretext for unlawful discrimination. Therefore, we find that the AJ properly issued summary judgment in favor of the Agency.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented no genuine issues of material fact, such that summary judgment was appropriate. We further find that Complainant has not established that the Agency subjected him unlawful discrimination when it did not select him for a GS-13 Operations Research Analyst position and when management provided information to CCF. Accordingly, we AFFIRM the Agency's final order.
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
July 2, 2015
Date
1 The Commission will not review an agency's determination with regard to the substance of a security clearance decision or the validity of the security requirement itself. See Policy Guidance on the Use of the National Security Exception Contained in � 703 (g) of the Civil Rights Act of 1964, as Amended, EEOC Notice No. N-915-041 (May 1, 1989); see also Department of the Navy v. Egan, 484 U.S. 518 (1987); Complainant v. Dep't of Defense, EEOC Appeal No. 0120133393 (Feb. 19, 2015).
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0120132447
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013