Earnest G.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Feb 8, 2017

0120140991 (E.E.O.C. Feb. 8, 2017)

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

Earnest G.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.

Appeal No. 0120140991

Hearing No. 570-2010-01080X

Agency No. NGAE-10-SI-04

DECISION

On January 2, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 30, 2013, final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Police Officer at the Security and Installations Directorate within
Agency headquarters in Bethesda, Maryland. On December 16, 2009, Complainant filed an
EEO complaint in which he alleged that he was discriminated against on the basis of age (63)
when, on October 9, 2009, he was not selected for the position of Operations Chief, which
would have resulted in his promotion to captain. (Claim 1).

At the conclusion of its investigation of Claim (1), the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely

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.
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requested a hearing. At the same time, he amended his complaint to include the following
incidents of alleged reprisal for initiating the present EEO complaint:

a. On July 16, 2010, Complainant was issued a letter of caution;

b. On October 11, 2010, Complainant was issued a notice of proposed removal;

c. On May 25, 2011, Complainant was issued a three-day suspension;

d. On May 26, 2011, Complainant was issued a seven-day suspension;

e. On December 16, 2011, Complainant was issued a ten-day suspension;

f. On an unspecified date in November 2011, Complainant was sent home and required to
use sick leave instead of being placed on light duty; and

g. On June 18, 2012, Complainant was subjected to an early review of his security
clearance which resulted in his clearance being revoked and him being placed on
administrative leave without premium pay.

(Claim 2). The Agency did not oppose Claim (2). Rather, it responded to the claim through
the discovery process, at the conclusion of which it moved for summary judgment on both
claims. On March 19, 2012, over Complainant's objections, the AJ assigned to the case
granted partial summary judgment on Claim (1). As to Claim (2), the AJ held a hearing on
June 4, 5, and 6, 2013. On November 19, 2013, the AJ issued a decision finding that
Complainant had not been subjected to reprisal discrimination.2 The Agency subsequently
issued a final order adopting the AJ’s finding and conclusions on claims (1) and (2), and
holding that Complainant failed to prove that he had been discriminated against on either
claim.

Claim (1) – Age Discrimination

The Police Superintendent, the official who ultimately approved the selection, convened a
three-member panel consisting of the Police Chief, the Deputy Police Chief, and an Officer
with the Security and Installation Division. All three panelists averred that when they received
the resumes and application packages they ranked the candidates based on the descriptions of
how well each candidate’s background and experience related to the Operations Chief position.

2 Citations to the record are as follows:
IR – Investigative Report;
HT1 – Transcript of hearing held on June 4, 2013;
HT2 – Transcript of hearing held on June 5, 2013; and
HT3 – Transcript of hearing held on June 6, 2013.
HE – Hearing Exhibit
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The applicants were given resume scores on a range between one and nine, with seven being
the cutoff score. After scoring the candidates individually, the panelists met to arrive at a
consensus ranking for all of the candidates. Those who received scores of seven or above
were referred for interviews. IR 65, 71-72, 76.

Complainant received a composite resume rating score of “six,” which was below the cutoff
score of seven. IR 77 When asked why Complainant did not merit a higher score, each
panelist averred that Complainant’s description of how his knowledge, skills, and abilities
related to the Operations Chief position was weak, and that his application had a number of
misspelled words which, in their view, reflected a lack of professionalism. IR 66, 72, 76.
The Deputy Police Chief stated that the Selectee was a retired Army colonel who had also been
a criminal investigator and a supervisor with the Maryland State Police. IR 67. He further
stated that the Selectee’s resume clearly documented his abilities in developing and
implementing policies and procedures, how he managed budget requests for training and
equipment, and how he handled reports, case ledgers, and other elements of the Operations
Chief’s daily routine. IR 66. The Police Superintendent averred that the Selectee and the
Alternate Selectee were the two highest-ranked candidates and that this was the unanimous
consensus of the panel. IR 82. The Recruiter from the Human Development (HD) Office
averred that all of the appropriate policies and procedures were followed in relation to the
vacancy and that nothing was done in the selection that was out of the norm. IR 86.

Claim (2) – Reprisal

Letter of Caution: The Police Chief issued Complainant a letter of caution on July 16, 2010,
for failing to properly secure Room E100 at the Agency’s Bethesda, Maryland Headquarters.
HT1 25-30; HE (2)-(4). The Police Sergeant who served as Complainant’s immediate
supervisor (S1) confirmed that the letter of caution was issued because Complainant had failed
to properly set an alarm when securing the room in question. HT2 243. The Police Chief and
the Superintendent testified that Complainant had been ordered to secure the room after the
Superintendent had left, and that it was later discovered that the room had not been properly
alarmed and as a result, was left unsecured. HT1 231-32; HT2 47-53, 84. The
Superintendent also testified that a letter of caution is neither punitive nor disciplinary in
nature. HT1 233-36. An HD Consultant recommended that the Chief issue a letter of caution,
as opposed to a letter of reprimand, in order to ensure consistency in disciplinary measures
taken for similar infractions. HE 5.

Proposed Removal: The Police Superintendent issued Complainant a notice of proposed
removal on October 11, 2010, for alleged inability to perform the duties of his position due to
diabetes and other conditions. HE 6, 7. Complainant stated that he was placed on
administrative leave when he received the proposed notice. HT1 32-36. The Police
Superintendent testified that Complainant was placed on administrative leave and issued the
notice of proposed removal because he failed to keep an appointment to submit to a medical
test that the Agency had recently adopted from the Department of the Army, referred to as the
Physical Efficiency Battery (PEB). HT1 231, 237, 240. The Police Chief averred that on
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October 12, 2010, the day after being issued the notice, Complainant presented a document
from his physician showing that he could perform the duties of his position but needed to do
alternative physical fitness activities on the PEB. The proposed removal was rescinded on
December 16, 2010, based upon the medical documentation submitted by Complainant. HE 8–
12, 14; HT1 240-41; HT2 7-14, 53-56, 88.

Three-Day Suspension: The Police Superintendent issued Complainant a notice of proposed
three-day suspension on March 28, 2011, which was ultimately sustained on May 25, 2011.
The suspension was issued as a result of three incidents which were collectively characterized
as “unprofessional conduct.” HE 19; HT1 55-64, 72. According to accounts of the incidents
from the Superintendent, the Chief, and the Deputy Chief, the first incident involved a
conversation between Complainant and another officer in which Complainant referred to a
supervisory Sergeant as an “asshole” and made other comments deemed to be derogatory. In
the second incident, Complainant refused to answer a question put to him by an Access Control
Officer (ACO) at the main gate concerning whether he had any electronic devices with him. In
the third incident, Complainant punched a locker in a fit of anger following an altercation with
a fellow employee. HT1 243-244, 270, 275-76; HT2 16-17, 56-68, 90-92; HT3 10-12. The
ACO testified that he and his fellow ACOs were security contractors and that part of their job
was to ask incoming employees passing through the main gate whether they had electronics
with them. He further testified that on two occasions, he had asked Complainant this question
and that both times, Complainant refused to answer in what the ACO characterized as an
“unprofessional” manner. The ACO noted that no employee was exempt from security
policies, not even the Director. HT3 45-52. A Consultant from the HD Office testified that
the three-day suspension was within the range of appropriate penalties. HE 20 – 23. HT2
230, 238-39.

Seven-Day Suspension: The Police Superintendent issued Complainant a seven-day suspension
for abandoning his post at a construction gate security booth to go to the restroom at the
Agency’s Visitor’s Center. The suspension had been signed by the Chief. The
Superintendent, the Chief, and S3 all testified that Complainant had left his post in the booth
for several minutes, and that this was a violation of basic security protocols. The
Superintendent characterized Complainant’s abandonment of his post as “extremely serious,”
and noted that abandoning that location could have resulted in unauthorized individuals gaining
access to the facility. HT1 241-43, 276-77; HT2 17-18, 68-72, 92-97. The HD Consultant
testified that a seven-day suspension was appropriate given the seriousness of the infraction.
HE 24, 25, 27. HT3 240-41.

Ten-Day Suspension: The Police Superintendent issued Complainant a ten-day suspension for
allowing an individual who had a military common access card (CAC), but not an intelligence
community (IC) badge, to enter the premises. HT1 98-101. According to the Superintendent,
the Chief, the Deputy Chief, S1, and the Police Lieutenant who served as Complainant’s
second-line Supervisor (S2), the standard security policy was that only those individuals who
presented IC badges were permitted access to the facility. All others, including those who held
military CAC’s were barred from entry unless they obtained approval in advance or they were
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given on-the-spot approval by the guard’s immediate supervisor or someone else up the chain
of command. The officials testified that Complainant had allowed an individual who had a
CAC but not an IC badge to enter the facility without first obtaining approval from someone in
his line of authority. HT1 244-53, 278-80; HT2 72-79, 119, 248-57, 267-72; HT3 12-14.
Again, the HD Consultant testified that the ten-day suspension comported with standard
business practices. HE 28 – 32; HT2 241-42.

Forced Use of Sick Leave: Complainant testified that on an unspecified date in November
2011, he was told not to report to work because, according to an Agency physician, he was not
capable of performing his duties as a Police Officer. HE 33, 34. Complainant further testified
that he had requested a light duty assignment but was told that none was available and that he
was to remain home and use his accumulated sick leave to cover his absences. HT1 103-08.
The Chief testified that based on information from the medical section he had received in late
2011, he concluded that Complainant had not been cleared for work, and that on November
17, 2011, he had received documentation from Complainant’s doctor stating that Complainant
had remained symptom-free and could return to work without restriction, which he did. HT2
79-81. Complainant’s third-line supervisor testified that he recalled Complainant being placed
on light duty due to his diabetes, and that light duty assignments were made at the Chief’s
discretion. HT2 12-13.

Security Clearance Revocation: Complainant testified that on June 18, 2012, he was told to
report to the security office. There, he was told that his security clearance was being revoked
and he was then placed on administrative leave and escorted from the facility. HT 118-20, 128-
29. In a memorandum addressed to Complainant dated June 4, 2012, the Adjudications
Branch Chief stated that an investigation of Complainant’s personal history had revealed
multiple instances of delinquent financial obligations and disciplinary actions that collectively
raised questions about his trustworthiness with sensitive compartmentalized information. HE
36. On June 11, 2012, the Agency proposed that Complainant be suspended indefinitely due to
his inability to maintain a security clearance, and his eligibility for access to sensitive
compartmentalized information was permanently revoked effective August 22, 2012. HE 37 –
40. A notice of proposed removal was issued on March 29, 2013. HE 54.

ANALYSIS AND FINDINGS

Claim (1) – Summary Judgment

To warrant a hearing on his claim of disparate treatment in his nonselection for the Operations
Chief Position, Complainant would have to present enough evidence to raise a genuine issue of
material fact as to whether any of the selecting officials were motivated by unlawful
considerations of his age in connection with their decision not to select him. See 29 C.F.R.
§ 1614.109(g); U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973); Jerrod K. v. Department of
the Treasury, EEOC Appeal No. 0120142417 (December 2, 2016). One should bear in mind,
however, that when hiring or promoting, agencies have broad discretion to choose among
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equally qualified candidates as long as the selection is not based on unlawful considerations.
Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015).
The Agency may select candidates with fewer years of experience if it believes that such
candidates are best qualified to meet the needs of the organization. See Complainant v. Dept.
of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). The Agency may even preselect a
candidate as long as the preselection is not premised upon a prohibited basis. See
Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015).

In nonselection cases Complainant could establish a genuine issue of material fact on the issue
of motive by showing that his qualifications for the position were plainly superior to those of
the Selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3,
2015). Other indicators of unlawful motive include discriminatory statements or past personal
treatment attributable to those responsible for the personnel action that led to the filing of the
complaint, comparative or statistical data revealing differences in treatment across various
protected-group lines, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or inadequately explained inconsistencies in the
evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov.
12, 2015).

When asked by the investigator why he believed that his age was a motivating factor in the
decision not to promote him to Operations Chief, Complainant responded that he had a college
degree, that he had undergone training at four different police academies in the course of his
career, and that he had thirty-five years of experience as a police officer, both in and out of the
military. IR 60. He also averred on rebuttal that every official involved with the selection,
particularly the Deputy Police Chief, was aware of his age. IR 96. The Officer averred that
while he had given Complainant credit for his experience as a Watch Commander and his
military background, this experience was not as robust as that of the Selectee and of the other
candidates who received scores of seven and above. IR 78. Complainant has not submitted
any sworn statements from other witnesses or documents that contradict the explanations
provided by panelists and the other officials involved with the selection, or which call their
veracity into question. We therefore find, as did the AJ, that no genuine issue of material fact
exists with respect to the panelists’ or the approving official’s motivation in connection with
their choice of the Selectee for the Operations Chief position on October 9, 2009. We concur
with the AJ’s conclusion that Complainant was not subjected to discrimination based on his age
when he was not selected for the position.

Claim (2) – Post-Hearing

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
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finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a retaliatory motivation on the part of the officials responsible for making those
decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on his reprisal claim in connection with the various
suspensions and other incidents listed in his complaint, Complainant would have to show that
the management officials involved in those incidents were motivated by unlawful
considerations of his EEO activity. See Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can establish a retaliatory motive by
presenting evidence tending to show that the reasons articulated by the Superintendent, the
Police Chief, and the other officials for the various suspensions and other actions were pretext,
i.e., not the real reason but rather a cover for reprisal. St. Mary’s Honor Society v. Hicks,
509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses,
inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action
that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v.
U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for
reconsideration denied EEOC Request No. 0520080211 (May 30, 2008).

In finding in the Agency’s favor, the AJ had made a number of critical factual findings, which
we briefly summarize. The letter of caution and the three suspensions were thoroughly
supported by contemporaneously prepared memoranda and by the hearing testimony of the
Police Superintendent, the Police Chief, the Deputy Chief, Complainant’s first-line, second-
line, and third-line supervisors, as well as personnel specialists from the Human Development
Office. The proposed removal issued in October 2011 was rescinded when Complainant
presented medical documentation sufficient to establish that he was able to perform the
essential functions of his position without reasonable accommodation.3 The decision to revoke
Complainant’s security clearance and to ultimately terminate him was based upon an extensive
record of delinquent financial obligations and disciplinary infractions, including the three
suspensions at issue in his complaint. As to his claim that he was forced to use sick leave, the
record indicates that Complainant was experiencing complications related to the onset of adult
diabetes, that he had been placed on light duty for an unspecified period of time, and that he
had presented documentation in November 2011 that he could continue to work as a police
officer without medical restrictions. Complainant failed to identify the specific dates upon
which he was allegedly denied the use of sick leave.

In making these findings, the AJ determined that the Police Superintendent and the other
witnesses were highly credible and accorded their hearing testimony great weight. An AJ’s

3 We note that Complainant’s complaint and amended claims did not include a claim of
disability discrimination.
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credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, Section VI, Subsection B. (Aug. 5,
2015). Complainant has not presented any testimony from other witnesses or documents that
contradict any of the explanations for the various incidents provided by the Agency’s
witnesses, or which call into question their credibility or veracity. We therefore find no basis
upon which to disturb the AJ’s credibility determination regarding the testimony of any of the
Agency’s witnesses. Ultimately, we agree with the AJ that Complainant has not sustained his
burden of proof with respect to his claim of retaliation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s findings and conclusion that Complainant was not
subjected to discrimination based on his age or in reprisal for his EEO activity.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 request or opposition must also include proof of service on the other
party.

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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. 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

February 8, 2017
Date