0120073798
03-06-2009
Hussein I. Abu-Khdeir, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Hussein I. Abu-Khdeir,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120073798
Hearing No. 541-2006-00184X
Agency No. 9C1S06002
DECISION
On August 31, 2007, complainant filed an appeal from the agency's
September 24, 2007 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). 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 network scheduler in the 22nd Space Operations Squadron (22 SOPS)
at the agency's Schriever, Colorado Air Force Base. The record reveals
that all employees of 22 SOPS are required to hold a security clearance as
a condition of employment. In 2001, complainant's security clearance was
subject to periodic renewal. As part of the security clearance renewal
process, complainant's first-line supervisor and the 22 SOPS Commander
were required to provide recommendations regarding complainant's
suitability to hold a security clearance. Complainant also sought
reference letters from other supervisors, co-workers, and associates.
On November 22, 2005, complainant filed an EEO complaint alleging that
he was discriminated against in reprisal for prior protected EEO activity
under Title VII when:
a. On August 31, 2005, complainant's immediate supervisor asked to speak
to complainant in the conference room and allegedly said in the course
of this conversation, "Do you think what you did is just that easy,
that we are going to forget it?"
b. On September 21, 2005, complainant spoke with his second-line
supervisor about his security clearance, and complainant mentioned
the need for the second-line supervisor to write a character letter on
his behalf. The second-line supervisor alluded that he would not write
a letter favorable to complainant because he questioned complainant's
integrity, specifically referring to incidents mentioned in complainant's
previous EEO complaint (sick leave usage and letter of reprimand).
c. On October 3, 2005, the first-line supervisor asked to speak with
complainant about the issue of the suspension of his security clearance
by the Joint Personnel Adjudication System (JPAS). JPAS needed a letter
of recommendation to be sent on complainant's behalf. In discussing
the letter, the second-line supervisor alluded to questionable integrity
issues surrounding complainant, mentioned that complainant had lied in
his previous EEO complaint, and brought up the issue of complainant lying
with respect to sick leave usage and a letter of reprimand. On another
occasion, during a discussion between complainant and the second-line
supervisor, the second-line supervisor discussed non-work related events
that occurred in complainant's life 25 years prior to the discussion,
which the second-line supervisor viewed as integrity issues.
In an investigative affidavit, complainant alleged that in late August
2005, his first-line supervisor asked him how he could ask for a good
recommendation
"after what I had put the organization through for the last two or
three years." Complainant further stated that the first-line supervisor
then asked complainant if he thought that he was going to forget what
had happened and asserted that complainant lied about a prior sick
leave incident.1 Complainant further stated that on October 3, 2005,
the first-line supervisor discussed complainant's security clearance
with him and again stated that complainant had lied about sick leave,
referred to an incident wherein complainant was suspended because he
could not return to work because his children were sick, and mentioned
several stories complainant had shared with him regarding events many
years ago. Complainant's immediate supervisor provided a recommendation
to the Air Force Central Adjudication Facility (AFCAF) in which he stated
that he did not believe complainant would compromise national security,
but he could not give complainant a favorable recommendation to renew
his security clearance.
Additionally, complainant stated that when he mentioned his security
clearance to his second-line supervisor on September 2005, the second-line
supervisor said that he would not give complainant a character reference
because complainant lacked integrity and referenced the same sick leave
incident that was the subject of his previous EEO complaint. Complainant
stated that he told the second-line supervisor that he had proof he had
a medical appointment to justify the sick leave use and later provided
the documentation to the second-line supervisor and Commander.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's January 13, 2007 motion for a decision
without a hearing and issued a decision without a hearing on June
15, 2007. In that decision, the AJ concluded that complainant failed
to establish a prima facie case of reprisal or prove that the agency's
non-discriminatory explanations for its actions were pretext for reprisal.
Specifically, the AJ stated that "[t]he law protects individuals from
being retaliated against due to their EEO activity not the events which
give rise to the EEO activity." The agency subsequently issued a final
order adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly found no reprisal.
Complainant argues that the AJ's decision should be reversed because of
the discovery of new evidence he acquired in August 2007. Complainant
contends that after filing Freedom of Information Act (FOIA) and Privacy
Act requests in April and July 2007, he received a document that he had
never seen before, a November 2, 2005 letter written by his second-line
supervisor to his superiors in which the supervisor made negative
statements about complainant. Complainant argues that the November 2,
2005 letter contradicts the second-line supervisor's April 26, 2006
investigatory affidavit statement in which he denied making any negative
recommendations or comments concerning complainant that would impact
complainant's security clearance. Complainant further argues that the AJ
failed to properly consider the significance of the supervisors' statement
that they would not forget events related to complainant's EEO activity.
In response, the agency contends that the AJ properly found no reprisal,
and complainant's newly discovered evidence should be excluded from
consideration because complainant failed to show that the evidence was
unavailable prior to the issuance of the AJ's decision.2
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
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.
Reprisal
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
Assuming arguendo that complainant established a prima facie case of
reprisal, we nonetheless find that the agency provided legitimate,
non-discriminatory explanations for its actions. Specifically,
complainant's first-line supervisor asserted that when complainant
urged him to use his conscience when making his security clearance
recommendation, the supervisor asked complainant, "What am I supposed
to do, just forget as if nothing ever happened?" The supervisor
stated that this question referred to the actual events concerning
complainant's reprimand and suspension that are still part of the
record, not his EEO complaints. "A security clearance determination is
a very important action, it requires a lot of information to make the
correct determination, and I was not going to lie, either by telling
something that was untrue or not telling something I knew," the
first-line supervisor stated. First-Line Supervisor Affidavit, p. 2.
The first-line supervisor further stated that on October 3, 2005, he
informed complainant that he had questions about some of the things that
complainant had told him in the past and events related to disciplinary
actions. The first-line supervisor stated he mentioned these matters
because they reflect on his suitability for a security clearance, but
he ended the conversation because complainant became very emotional.
Complainant's second-line supervisor stated that after complainant
asked him if he would submit a letter of recommendation for his security
clearance, the supervisor stated that he would not because he had "some
issues" with complainant's integrity. The supervisor stated that he
cited the sick leave incident in which he believed complainant made false
representations to the agency as an example of complainant's integrity
issues. "I believe [complainant's] actions in those events were and still
are questionable and raise questions about his integrity. Integrity is
a substantial concern in security areas and must be addressed," the
second-line supervisor stated. Second-Line Supervisor Affidavit, p. 2.
Upon review, we determine that complainant mistakes management's
permissible references to personnel matters that were the subject
of his previous EEO complaint as impermissible references to EEO
activity. Complainant concludes that his supervisors were "obviously
referring to my previous discrimination complaints" when discussing
his security clearance. However, we determine that even assuming that
complainant's affidavit accounts are true, the supervisors were referring
to the underlying events that precipitated complainant's prior EEO
activity when discussing his security clearance, not complainant's EEO
activity. Thus, we conclude that there is no genuine issue of material
fact in this case. We further find that complainant has failed to provide
any persuasive evidence from which a reasonable fact-finder could conclude
that the agency's explanations are pretext for unlawful discrimination.
Consequently, we determine that the agency properly found no reprisal.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
__March 6, 2009________________
Date
1 According to complainant, his previous EEO complaint alleged in
part that the agency subjected complainant to religious discrimination
when he was reprimanded for using sick leave so that he could attend
a political rally. A July 20, 2004 settlement agreement, in pertinent
part, reduced the reprimand to an oral admonishment.
2 As a general rule, no new evidence will be considered on appeal unless
there is an affirmative showing that the evidence was not reasonably
available prior to or during the investigation. EEO Management Directive
for 29 C.F.R. Part 1614, Ch. 9 � VI. A. 3. (1999) (MD-110). In this
case, complainant seeks to introduce into evidence for the first time
a document dated November 2, 2005. Complainant states that he received
the letter in August 2007 after he made FOIA and Privacy Act requests in
April and July 2007. However, we note that complainant's complaint was
filed on November 22, 2005, after the creation of the "new evidence."
Thus, complainant could have made a FOIA request to receive the new
evidence well before he made the April 2007 FOIA request. Consequently,
we decline to consider the newly presented evidence.
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0120073798
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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