Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 13, 2015

01-2013-0498-0500 (E.E.O.C. May. 13, 2015)

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

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120130498

Agency No. ARFTSAM11MAY02373

DECISION
On November 15, 2012, Complainant filed an appeal from the Agency’s November 8, 2012
final decision 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. The Commission deems the appeal timely and accepts
it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
Complainant applied for an Information Technology Specialist position at the Medical
Information Technology Center (MITC) at Fort Sam in Houston, Texas. On April 1, 2011, he
was offered the position, but was notified that the position required a “secret” level security
clearance. Complainant entered on duty on April 25, 2011, after his security investigation had
begun. On May 3, 2011, the Security and Intelligence Branch Chief at the Medical Command
headquarters recommended that Complainant not be given access to the local area network
until the security investigation had been completed. The basis for his recommendation was that
the security investigation had uncovered derogatory information regarding Complainant’s
employment history. That same day, Complainant was placed on administrative leave, pending
the outcome of the investigation. One week later, on May 10, 2011, Complainant was
terminated by the MITC Commander. The stated reason for the termination was that
Complainant was unable to obtain a “secret” security clearance due to the derogatory
information in his record.

On June 20, 2011, Complainant filed an EEO complaint in which he alleged that the MITC
Commander terminated him because of his race. He later added reprisal as a basis, contending
that the MITC Commander hastened his termination when she found out that he had contacted
0120130498

2
an EEO counselor. At the conclusion of the ensuing investigation, the Agency provided
Complainant with a copy of the investigative report (IR) and notice of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge. In
accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order to prevail on his claim of disparate treatment in connection
with his termination, Complainant would have to prove, by a preponderance of the evidence,
that the MITC Commander was motivated by unlawful considerations of his race and EEO
activity when she directed that he be removed. Reeves v. Sanderson Plumbing Products, Inc.

,
530 U.S. 133, 143 (2000).
The MITC Commander testified at a fact-finding conference that Complainant’s security
clearance investigation had revealed derogatory information in his employment history that was
significant enough to cause the MITC Commander’s deputy, the Information Assurance and
Security (IAS) Chief, to recommend that Complainant not be allowed access to the local area
network until the investigation had been completed. That information included issues in the
areas of personal conduct, financial considerations, psychological conditions, and allegations of
criminal conduct. The IAS Chief also recommended that the matter be turned over to the
Security Office at the Medical Command (MEDCOM) Headquarters. The MEDCOM Security
Manager informed the MITC Commander that, based on the information contained in
Complainant’s security investigation package, Complainant would not be granted a “secret”
clearance, whereupon the Commander ordered that Complainant be terminated.

The MITC Commander’s testimony at the fact finding conference has been amply corroborated
by and is consistent with testimony from the IAS Chief and his Security Assistant, and the
Security Branch Chief. The Commander’s testimony is also consistent with the emails and
contemporaneously prepared memoranda documenting Complainant’s security investigation
and its outcome. IR 74, 80, 82, 87, 89-93, 98-103, 122, 138-40, 145, 158, 162-65, 179, 373-
90, 457-60, 487-92. While Complainant asserts that the Commander’s action was
discriminatory, he has not presented any sworn statements from other witnesses or documents
that contradict the Commander’s explanations for the termination or which call the
Commander’s veracity into question. It is Complainant’s burden to establish the existence of
an unlawful motivation on the part of the responding management officials by a preponderance
of the evidence, and more is required to meet that burden than merely expressing one’s belief.
We therefore find, as did the Agency, that Complainant failed to satisfy his burden of proof as
to the existence of an unlawful motivation on the part of the MITC Commander in connection
with his removal.
0120130498

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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.
0120130498

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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

Date
May 13, 2015