Michale S.,1 Complainant,v.David Bernhardt, Acting Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120181813 (E.E.O.C. Sep. 27, 2019)

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

Michale S.,1
Complainant,

v.

David Bernhardt,
Acting Secretary,
Department of the Interior,
Agency.

Appeal No. 0120181813
Hearing No. 570-2016-00072X
Agency No. DOIBSEE150598

DECISION

On May 4, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the April 13,
2018, EEOC Administrative Judge’s 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.2 For the following reasons, the
Commission AFFIRMS the Agency’s final order.3

ISSUES PRESENTED

In the instant appeal, we examine whether the EEOC Administrative Judge properly issued a
decision without a hearing finding that Complainant did not establish that he was discriminated
against in reprisal for prior protected EEO activity when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 Complainant’s appeal was filed before the expiration of forty (40) after the Administrative
Judge’s decision. Because there was no objection by the Agency, and due to the passage of time,
we find that this matter is ripe for adjudication.
3 Because the Agency did not issue a final action within 40 days of receiving the Administrative
Judge’s decision, by regulation, its inaction will be deemed an acceptance of the decision. The
Administrative Judge’s decision in effect became the Agency’s final order. See 29 C.F.R.
§ 1614.109(i).

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(1). On January 15, 2015, he received a letter from a security agency denying his
clearance for a GS-15 position which he attributes to negative comments by Bureau
of Safety and Environmental Enforcement (BSEE) Management.

(2). On April 2, 2015, he discovered that the Office of Personnel Management
(OPM) was unable to respond to his Freedom of Information Act (FOIA) request
because the BSEE refused to provide the requested information.

BACKGROUND

At the time of events giving rise to this complaint, Complainant received a conditional job offer
for the position of Supervisory Instructional Systems Training Manager.4 Complainant previously
worked as the Director of the National Offshore Training and Learning Center in the Agency’s
BSEE division. On February 10, 2015, Complainant filed an EEO complaint alleging that the
Agency discriminated against him as articulated in the statement of Issues Presented above. 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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing.

Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 13, 2017,
motion for a decision without a hearing and issued a decision without a hearing on April 13, 2018.
Among other things, the AJ found that the Agency provided a legitimate, non-discriminatory
reason for why Complainant’s clearance was denied, i.e., because of unfavorable information S1,
his first-level supervisor from the BSEE, provided during an OPM background investigation
interview. The AJ further found that it was it was undisputed that S1 did not want to participate in
the OPM investigative interview process outside of providing general verification information
regarding Complainant’s employment with the Division. S1 only participated after being advised
by the BSEE management to participate and respond truthfully to the OPM investigator’s
questions.

With regard to claim 2, the AJ found that Complainant failed to present any evidence, or in the
alternative, to simply allege facts, which if proven true, demonstrated that he was subjected to an
adverse employment action. Specifically, Complainant, according to the AJ, failed to present any
evidence such as discovery responses, witness statements, deposition transcripts or other
documentary or testimonial evidence that identified the OPM employee that allegedly telephoned
him to inform him that BSEE officials refused to release his background investigation report.
Similarly, Complainant failed to present any evidence which demonstrated that a BSEE employee
refused to authorize the release of his security clearance investigation to OPM.

4 The June 17, 2014 job offer was conditional upon Complainant receiving a satisfactory finding
in a background investigation.
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Finally, the AJ found that Complainant failed to present any evidence which demonstrated which
BSEE management official was responsible for refusing to release his security investigation report
and that the individual was aware of his protected activity.

As noted above, the AJ’s decision became the Agency’s final order after 40 days. The instant
appeal followed.
CONTENTIONS ON APPEAL

On appeal, through his representative, Complainant asks that we reverse the AJ’s decision because
there were genuine issues of material fact that warrant a hearing, and because the AJ’s inherent
bias prohibited him from fairly deciding the case. Complainant contends that the AJ failed to
consider, or ignored, certain factual evidence and testimony that was critical to deciding his case.
Additionally, in an effort to establish pretext on appeal, Complainant cites to management’s failure
to respond to various claims of harassment he made as circumstantial evidence of retaliatory
motive.

In response, the Agency, in pertinent part, requests that we deny Complainant’s appeal and affirm
the AJ’s finding that Complainant failed to establish discrimination as alleged. The Agency
supports the AJ’s finding that Complainant failed to meet his burden of demonstrating that there
were genuine disputes of material fact making summary disposition inappropriate and failed to
meet his burden of proving that the Agency’s asserted legitimate, non-discriminatory reasons were
pretextual.
STANDARD OF REVIEW

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both 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”).

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ANALYSIS AND FINDINGS

We note that the Commission has the discretion to review only those issues specifically raised in
an appeal. Because Complainant does not specifically contest the AJ’s findings concerning claim
2, this issue will not be addressed in this decision. See EEOC Management Directive for 29 C.F.R.
Part 1614, (MD-110), Chap. 9, § IV.A. (Aug. 5, 2015) (“Although the Commission has the right
to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those
issues specifically raised on appeal.”).

We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for 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 “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant does not
present any specific arguments contesting the AJ’s issuance of a decision without a hearing. He
reiterates his arguments that the AJ’s bias led him to disregard facts and evidence. Complainant,
however, does not provide any evidence to support his assertion that the AJ was operating with
inherent bias.

After a review of the record, we find that there are no genuine issues of material fact or any
credibility issues which required a hearing and therefore the AJ’s issuance of a decision without a
hearing was appropriate. The record has been adequately developed, Complainant was given
notice of the Agency’s motion to issue a decision without a hearing, he was given a comprehensive
statement of undisputed facts, he was given an opportunity to respond (and did) to the motion and
statement of undisputed facts, and he had the opportunity to engage in discovery. Under these
circumstances, we find that the AJ’s decision without a hearing was appropriate.

Disparate Treatment: Reprisal
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In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII cases alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor
Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must
establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must
articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must
prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency
was a pretext for discrimination. Id. at 256.

Assuming, arguendo, Complainant established a prima facie case of discrimination based on
reprisal for prior EEO activity, we find that the Agency articulated a legitimate, non-discriminatory
reasons for claim 1, i.e., the security clearance denial – S1 provided unfavorable information about
Complainant during the OPM investigative interview. Like the AJ, we find no evidence that
discriminatory animus played any role in S1’s conduct. Absent unlawful discrimination, the
Commission will not interfere in personnel actions engaged in by the Agency and substitute our
judgment. Complainant provides nothing beyond his own belief that S1 held retaliatory animus
against him, and that this animus shaped his responses to OPM’s inquiry. This is insufficient to
meet Complainant’s burden here.

CONCLUSION

Based on a thorough review of the record, we find that the AJ properly issued a decision without
a hearing finding that Complainant failed to demonstrate that he was subjected to discrimination
when on January 15, 2015, he received a letter from a security agency denying his clearance for a
GS-15 position which he attributes to negative comments by BSEE Management. The Agency’s
final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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.
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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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (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.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s 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 27, 2019
Date