The U.S. District Court for the District of Columbia recently addressed to what extent an employer may take steps to protect confidential business data during an investigation of employee misconduct. Jimenez v. Mayorkas, No. 17-cv-2731 (D.D.C. 3/1/22).
Rolando Jimenez is a government employee who, in 2012, was granted access to HSDN, a classified information system. A few years later, he was placed on special assignment with an external organization. That assignment was cut short due to concern about an alleged policy violation related to dissemination of classified information. Jimenez, as a result, was transferred back to his former agency.
Following his transfer, Jimenez requested and was denied access to HSDN. When he asked about the change, Jimenez’s supervisors told him that his current job duties did not require system access. In the meantime, Jimenez’s immediate supervisor was also advised by his own supervisor not to grant Jimenez access to any new systems due to an ongoing investigation into Jimenez’s conduct.
Jimenez reacted by filing suit against the employer agency, including a claim for retaliation. He alleged among other things that his supervisors retaliated against him for filing EEO complaints by denying him access to HSDN.
Proof of retaliation requires a showing that an employee suffered a materially adverse action. This means the action was “harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The U.S. District Court for the District of Columbia determined that Jimenez could not demonstrate his non-access to the HSDN system was “more than a minor inconvenience” in the context of his current work responsibilities. This precluded Jimenez from establishing the adverse action element of his claim. The Court also rejected Jimenez’s claim that his agency’s failure to conduct an independent investigation of the alleged external policy violation was evidence of pretext, explaining that such claims an employer “made a bad decision” are insufficient to defeat summary judgment.
The case is a good reminder for employers to carefully weigh interim measures pending the outcome of a workplace investigation. While added protections for employer systems is typically good practice, employers should strive to minimize impact on employee ability to do work in order to reduce risk of liability for retaliation claims.