0320120036 & 0120114302
07-10-2012
Kirk E. Webster, Petitioner, v. Leon E. Panetta, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.
Kirk E. Webster,
Petitioner,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.
Petition No. 0320120036
Appeal No. 0120114302
MSPB No. DC-0752-11-0917-I-1
Agency No. NGAE-10-S17
DECISION
On September 14, 2011, Petitioner filed an appeal with the Commission from the Agency's decision dated August 10, 2011, dismissing the claims contained in his request to amend his complaint of unlawful employment discrimination. On February 24, 2012, Petitioner filed a petition with the Commission asking for a review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination. Both the Agency and MSPB decisions concerned claims of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
ISSUES PRESENTED
The issues presented are: (1) whether Appeal No. 0120114302 is properly before the Commission; and (2) whether, in Petition No. 0320120036, the decision of the MSPB, with respect to Petitioner's allegation of race and reprisal discrimination, constitutes a correct interpretation of any applicable law, rule, regulation, or policy directive, and is supported by the evidence in the record as a whole.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Lead Geointelligence Analyst (Cartography) at the Agency's facility in Springfield, Virginia.
On June 21, 2011, the Agency issued Petitioner a notice of proposed indefinite suspension. Specifically, the notice stated that the proposed indefinite suspension was based on the suspension of Petitioner's security clearance and access to Sensitive Compartmented Information (SCI) pending the Office of Security's final decision regarding his continued eligibility for access to classified information. In addition, the notice stated that Petitioner would receive 45 days of paid administrative leave.
On July 8, 2011, Petitioner emailed a Human Development Consultant (HDC) and asked if it was possible to extend the 45 days of paid administrative leave. In response, HDC informed Petitioner that he should include such a request in his response to the Agency's notice, along with his reasons for extending the leave.
On August 4, 2011, the Agency issued a decision to indefinitely suspend Petitioner, effective August 5, 2011. In addition, the decision stated that the Agency was unable to grant Petitioner's request to extend the 45 days of paid administrative leave. Further, the decision noted that Petitioner could appeal to the MSPB or contact an EEO Counselor to file a discrimination complaint.
Shortly thereafter, Petitioner attempted to amend his existing EEO complaint (Agency No. NGAE-10-S17, filed on November 18, 2010) to allege that the Agency discriminated against him in connection with his indefinite suspension on the bases of race (African-American) and reprisal for prior protected EEO activity. Among other things, Petitioner alleged that the Agency discriminated against him when it denied his request to extend the 45 days of paid administrative leave.1
On August 10, 2011, the Agency dismissed all the claims contained in Petitioner's amendment request.2 In its dismissal, the Agency explicitly gave Petitioner appeal rights to the Commission. On September 24, 2011, Petitioner filed the instant appeal.
On August 24, 2011, Petitioner filed an appeal with the MSPB of his indefinite suspension following suspension of his security clearance. As part of his MSPB appeal, Petitioner submitted copies of the June 21, 2011 notice of proposed indefinite suspension, the August 4, 2011 decision on proposed indefinite suspension, and the August 10, 2011 dismissal decision.
On December 21, 2011, after a hearing, an MSPB Administrative Judge (MSPB AJ) issued an initial decision affirming the Agency's action and finding no discrimination. As an initial matter, the MSPB AJ noted that Petitioner did not dispute that his position required a security clearance, that his security clearance was revoked, and that he was afforded the appropriate due process in connection with the revocation and the indefinite suspension. Instead, the MSPB AJ noted, Petitioner alleged that the Agency's denial of his request to extend the 45 days of paid administrative leave was discriminatory on the bases of race and reprisal.
In finding no race discrimination, the MSPB AJ determined that Petitioner failed to establish a prima facie case because he did not show that he was treated differently than similarly situated employees of another race. Specifically, the MSPB AJ found, based on documentary evidence, that the Agency had a policy of granting only 45 days of paid administrative leave to employees whose clearances were suspended, after which they were placed on indefinite suspension pending adjudication of their security clearance suspension. In addition, the MSPB AJ cited the following hearing testimony: (a) Petitioner testified that he "vaguely recalled" that another employee, whose race he did not identify, received more than 45 days of paid administrative leave when that employee's security clearance was suspended, but "could not be 100 percent sure" of this because it had all happened in 2004; (b) Petitioner did not dispute that the Agency's policy was to grant employees 45 days of paid administrative leave, but instead testified that he had seen "a lot of rules violated" in his 23 years at the Agency; and (c) HDC testified that she was not aware of an employee receiving more than the allotted 45 days of paid administrative leave in similar circumstances.
Regarding the issue of reprisal discrimination, the MSPB AJ determined that there was no evidence in the record to show that the Agency's denial of his request to extend the 45 days of paid administrative leave was based on his prior EEO activity. Moreover, the MSPB AJ noted that Petitioner did not address this issue at the hearing.
Petitioner did not file a petition for review by the full Board and the MSPB AJ's initial decision became the MSPB's final decision on January 25, 2012. Petitioner then filed the instant petition. Petitioner did not submit a statement of the reasons why he believed the decision of the MSPB was incorrect with regard to issues of discrimination.
ANALYSIS AND FINDINGS
As an initial matter, we find that Petitioner's amendment request constituted a new mixed case complaint and should not have been treated as a request to amend his existing EEO complaint. A mixed case complaint is a complaint of employment discrimination filed with an agency related to or stemming from an action that can be appealed to the MSPB.
29 C.F.R. � 1614.302(a). Here, the claims contained in Petitioner's amendment request were related to his indefinite suspension and that issue, according to the Agency's August 4, 2011 suspension decision, was appealable to the MSPB.
Appeal No. 0120114302
When the Agency issued its August 10, 2011 decision dismissing the claims contained in Petitioner's amendment request, it essentially issued a final decision on Petitioner's mixed case complaint. 29 C.F.R. � 1614.302(d)(3) provides that at the time that the agency issues its final decision on a mixed case complaint, the agency shall advise the petitioner of the right to appeal the matter to the MSPB (not EEOC) within 30 days of receipt. Here, the Agency's dismissal decision instead advised Petitioner of his right to appeal the matter to the EEOC and Petitioner subsequently filed an appeal with the Commission. Because we find the appeal to be improper, we will administratively close the appeal and address the merits of Petitioner's allegations of discrimination pertinent to his indefinite suspension, i.e. the Agency's denial of his request to extend the 45 days of paid administrative leave, in our decision below on his petition for review.
Petition No. 0320120036
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Upon review of the record, we concur with the MSPB's decision that Petitioner did not establish that the Agency's denial of his request to extend the 45 days of paid administrative leave constituted race or reprisal discrimination. We note that Petitioner did not specifically challenge any part of the MSPB's decision in his petition to the Commission.
Assuming, arguendo, that Petitioner established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for denying his request for additional paid administrative leave; namely, Agency policy provides for no more than 45 days of paid administrative leave for security clearance suspensions. Section 7f(5)(d) of the NGA Instruction for Employee Adverse Action and Discipline (approved March 11, 2010) states that the Agency "has adopted a 45-calendar day notice period for indefinite suspensions for security-clearance suspensions. During this notice period, employees are placed on administrative leave. The 45-day period of administrative leave will not be extended under any circumstance." [emphasis added]. Similarly, a February 28, 2006 Agency-wide email describing the security clearance suspension procedure states that "[e]mployees whose security clearances are suspended will be granted 45 calendar days of Administrative Leave ... After the 45 days, they will be placed on Indefinite Suspension without pay. During Indefinite Suspension, employees may request the use of Annual Leave and/or Sick Leave, as appropriate."
Moreover, we find that Petitioner failed to show that the Agency's articulated reason was a pretext for race or reprisal discrimination. Typically, pretext is proved through evidence that an agency treated the petitioner differently from similarly situated employees. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.E.2. (May 20, 1998). Likewise, an agency's deviation from an applicable personnel policy, or a past practice, can support an inference of a discriminatory motive. EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, at 15-V.A.2 (Apr. 19, 2006). Conversely, acting in conformance with a consistently applied nondiscriminatory policy or practice would suggest there is no such motive. Id.
Here, there is no evidence that the Agency treated Petitioner differently from similarly situated non-African-American employees or employees with no prior EEO activity, or deviated from its policy regarding the number of days of paid administrative leave it granted during security clearance suspensions. In contrast, the documentary and testimonial evidence, as cited above and by the MSPB AJ, tends to show that no employees received more than 45 days of paid administrative leave and that the Agency's denial of Petitioner's request conformed to its security clearance suspension policy.
In his closing arguments, Petitioner contended that HDC testified untruthfully when she stated that she was not aware of other employees ever receiving more than 45 days of paid administrative leave. In support of his contention, Petitioner noted that, in her response to his July 8, 2011 email, HDC failed to mention that the Agency's policy did not allow for an extension of the 45 days of paid administrative leave. We emphasize, however, that the MSPB AJ found HDC's testimony to be credible. In addition, we note that HDC testified that she informed Petitioner about the procedures for requesting additional administrative leave because she always feels that an employee can ask. Moreover, HDC testified that she never told Petitioner that she was the person who would make the decision on his request. While Petitioner speculated that others outside his protected classes have received more than 45 days of paid administrative leave, we agree with the MSPB AJ that he provided no evidence of such disparate treatment.
Accordingly, we conclude that the MSPB correctly held that Petitioner failed to show that the Agency's actions constituted unlawful race or reprisal discrimination.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to administratively close Appeal No. 0120114302 and CONCUR in Petition No. 0320120036 with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
___7/10/12_______________
Date
1 Other Agency actions that Petitioner alleged were discriminatory included: (1) the issuance of a June 15, 2011 notice of intent to revoke his eligibility for access to SCI; (2) the suspension of his security clearance; (3) the issuance of the June 21, 2011 notice of proposed indefinite suspension; (4) the suspension of his position; (5) his placement on 45 days of paid administrative leave; and (6) the failure to place him in a non-sensitive location pending the evaluation and adjudication of his security clearance issues.
2 The Agency found that all the actions alleged to be discriminatory were part and parcel of the security clearance adjudication process and that, pursuant to Department of the Navy v. Egan, 484 U.S. 518 (1998), the MSPB and the Commission were prohibited from reviewing matters within the security clearance decisional process, even if those actions are alleged to have been taken for a discriminatory motive.
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0320120036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320120036 & 0120114302