Allene S.,1 Complainant,v.General Paul M. Nakasone, Director, National Security Agency, Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120171080 (E.E.O.C. Nov. 15, 2018)

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

Allene S.,1
Complainant,

v.

General Paul M. Nakasone,
Director,
National Security Agency,
Agency.

Appeal No. 0120171080
Hearing No. 531-2012-00242X
Agency No. 11011

DECISION

On January 13, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 6, 2017, final order concerning her 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., and 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.

ISSUE PRESENTED

The issue presented in this case is whether the Agency erred in fully implementing the Equal
Employment Opportunity Commission’s Administrative Judge’s (AJ), decision following a
hearing, which found that Complainant did not demonstrate that she was subjected to
discrimination and harassment with respect to several work place incidents that included,
assignments, bonuses, transfers, performance improvement plans, security clearance,
psychological exams, and termination.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information Systems
Security Engineer, (ISSE), at the Agency’s Technology Directorate facility in Washington, D.C.
Complainant filed two complaints which were consolidated. Complainant alleged that the Agency
discriminated against her on the bases of sex (female), age (57), and reprisal for prior protected
EEO activity when:

Complaint No. 11-011

1. Complainant received a 2.7 on her final Annual Contribution Evaluation (ACE) on
August 24, 2010;
2. Complainant received no bonuses or awards during the 2009-2010 rating period;
3. Complainant was denied a Joint Duty Assignment;
4. Since March 2008, Complainant was excluded from high visibility projects,
leadership meetings, seminars, and training;
5. Complainant did not receive an annual performance bonus in January 2011;
6. Complainant was not assigned to a particular security engineering project;
7. On May 12,2011 Complainant was given a memorandum instructing her to have a
psychological evaluation on May 19, 2011;
8. On June 1, 2011, Complainant was told that her security clearance would expire on
August 19, 2011;
9. On June 17, 2011, Complainant was placed on a Documented Performance
Improvement Plan (DPIP); and
10. On July 11, 2011, while in a meeting to discuss her performance, Complainant’s
supervisor stated to her “you can leave the Agency.”

Complaint No. 12-004

Complainant alleged that she was subjected to harassment based on reprisal for prior EEO activity,
when:
11. Complainant received a score of 1.00 out of 5.00, on her Annual Contribution
Evaluation (ACE) on September 22, 2011.

Complainant also alleged she was subject to harassment based on sex (female), age (57), and
reprisal for prior EEO activity, when:

12. Complainant received a Notice of Proposed Action, dated December 14, 2011,
stating the Agency’s intent to terminate her employment;
13. Complainant received a letter dated January 23, 2012, stating that Complainant’s
removal was fully warranted; and
14. Complainant received a letter dated January 24, 2012, stating the effective date of
her removal was February 9, 2012.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and
the AJ held a hearing on September 16, 17, and 18, 2014, and issued a decision on December 1,
2016. The AJ found that assuming, arguendo, Complainant established a prima facie case of
discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its
actions, and Complainant did not demonstrate that the reasons were pretext for discrimination.

With regard to Complainant’s allegation that she only received a 2.7 ACE score in August 2010,
the AJ noted the Agency’s explanation that this was due to administrative or clerical error that
occurred when scoring Complainant’s objections. After an informal reconsideration, her score
was raised to 3.0. With regard to Complainant’s allegations that she was denied bonuses, the AJ
found that the Agency explained that only the top 50% of ACE earners were awarded bonuses and
Complainant never was within the top 50%. With regard to Complainant’s allegation that she was
not selected for Joint Duty Assignments, the Agency explained that while it provided advice to the
hiring personnel at DISA, the final decision was made by the Director of DISA.

The Agency also explained that contrary to Complainant’s assertions that she was not assigned
high visibility assignments, was not allowed to attend leadership meetings, and was not permitted
to attend seminars and training, Complainant had several high visibility projects. In fact, she had
a mission critical assignment and another of her assignments made the front page of a technology
newsletter. Also, Complainant was encouraged by management to attend seminars and training
so that she could get her certification. Finally, management testified that Complainant would not
normally be included in leadership meetings because she was not in a leadership position. Also,
Complainant was not clear about what particular security engineering project that she wanted
assigned.

Further, Complainant was instructed to have a psychological evaluation because management
obtained information that caused concerns about Complainant’s behavior and called into question
her ability to manage classified information.2 Management ultimately decided, however, that
instead of ordering her for an evaluation, she would be reminded how she had to treat classified
information.

2 An Agency official believed that the information rose to such a level as needing to be reviewed
by the Security office. The Security office reviewed the information and determined they wanted
someone from Psychological Services to review the information. Psychological Services reviewed
the information and accepted the referral for evaluation of Complainant. They prepared a memo
scheduling Complainant’s psychological evaluation. On May 12, 2011, Complainant received the
memo directing her to attend a psychological evaluation on May 19, 2011, but she never completed
the evaluation.
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The Agency also noted that Complainant’s security clearance and that of several of her coworkers
was scheduled to expire, so renewals were needed. Upon renewal, Complainant was told that her
certification would expire in three months instead of one (1) year. Management believed that
Complainant was given only three months’ clearance due to her pending psychological evaluation.

The AJ found that the Agency credibly testified that Complainant was placed on a Documented
Performance Improvement Plan (DPIP) because of her poor performance. Complainant was given
thirty days to improve but did not, nor did she meet with management as agreed to address her
work progress. Management also explained that officials were merely responding to
Complainant’s question, of “why the Agency wouldn’t let her leave,” when she was told “you can
leave the Agency.”

With respect to Complainant’s claims of harassment, the Agency indicated that Complainant
received a score of 1 out of 5, on her ACE on September 22, 2011, because she was performing at
an unsuccessful level for a senior technical position. Complainant was told that she could improve
her performance by getting the required certifications, that she should take more classes to
understand the Agency’s role, that she should take direction to improve her performance, and that
she should answer emails when a request for information or a response was needed. Complainant
was placed on a DPIP, because it was believed that she was at risk of receiving an end-of-year
performance rating of “Minimally Successful” or “Unacceptable.”

After the passage of the 30-day time period, Complainant had not fulfilled the terms of the DPIP,
because she did not complete the items specified in the DPIP. Complainant also failed to obtain a
valid Certified Information Systems Security Professional (CISSP) certification, a requirement not
only for her ACE and DPIP, but for her position as an ISSE. Because of Complainant’s poor
performance and failure to meet the requirements of her DPIP, on 22 September 2011, she received
a final ACE Evaluation rating of “Unacceptable” (1.00 out of 5.00).

Further, as Complainant was unsuccessful in meeting the objectives in the DPIP, and based on her
continued poor performance, management requested that Complainant be removed based on her
mid-cycle performance. Complainant was given the opportunity to respond. Management found
however, that in her replies to the proposed removal, Complainant provided no mitigating
information directly related to her failure to meet the requirements set forth in her DPIP.
Therefore, management found that the removal was fully warranted and sent her a letter informing
her of her effective date of removal.

The Agency argued that Complainant’s removal had nothing to do with her protected bases. In
fact, Complainant testified that the actions complained of were an outgrowth or continuation of
being labeled a “poor performer” by her former supervisor. The AJ found that the incidents
complained of were routine work-related issues that were not severe or pervasive enough to
establish a hostile work environment.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination or harassment as alleged.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the AJ erred in finding that the Agency
did not subject her discrimination. Specifically, she maintains that the hearing was flawed because
the AJ let the hearing continue after she reported that her attorney had quit the day before the
hearing. Complainant contends that with no experience and no time to call another attorney, she
had to go forward with the case. Complainant contends that she was disadvantaged when the AJ
allowed her only three witnesses, while the Agency was allowed twelve witnesses. She maintains
that none of the witnesses called were the clients that she worked with that would have testified to
her communication skills and excellent work product. Complainant also notes that the Agency’s
attorney did not enter his appearance and had not been the attorney working on the case.

Further, Complainant reiterates her contention that because she is a woman over 40 that had
previously filed an EEO complaint, she was subjected to low performance reviews, repeated unfair
denial of bonuses, and was denied transfer requests. Complainant maintains that she believes
management fired her three weeks before she could retire because she refused to write a contract,
which she knew to be illegal. Complainant requests that the AJ’s decision be reversed.

In response, the Agency contends, among other things, that the AJ’s finding of no discrimination
be upheld and its final order affirmed.

ANALYSIS AND FINDINGS
Standard of Review

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 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. An AJ’s 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, at § VI.B. (Aug. 5, 2015).

At the outset, we note that, regarding Complainant’s contentions on appeal, AJ’s have broad
discretion in the conduct of hearings, including discovery, and the determination of whether to
admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. § 109. Upon review
of the record, the Commission finds no evidence that the AJ abused her discretion in these matters.

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Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that there is substantial evidence in the record to support the
AJ’s findings and conclusions. Like the AJ, we find that even if Complainant established a prima
facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its
actions, as discussed above. We also agree that Complainant did not show that the Agency’s
reasons were pretext for discrimination or that discriminatory animus was involved in the
Agency’s actions. Further, we agree with the AJ that Complainant did not demonstrate that she
was subjected to a hostile work environment. We agree that the incidents complained of, even
when considered in total, are not severe or pervasive enough to establish a hostile work
environment. We also find that under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993) that Complainant’s claim of hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(Sept. 21, 2000).

On appeal, we find that other than Complainant’s conclusory statements, she has not provided any
evidence which suggests that the AJ erred in finding that she was not subjected to discrimination
or harassment. While it is clear, that she disagrees with the finding and believes that the AJ should
have postponed the hearing until she could hire a new attorney or until she could familiarize herself
with the case, she has not provided any evidence that even remotely suggests that the AJ erred. As
noted above, an AJ has broad discretion in handling a case, and a Complainant is ultimately
responsible for moving forward with his or her own case.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order which found that Complainant did not prove
that she was subjected to discrimination or harassment.

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.
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.
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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.

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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

November 15, 2018
Date