0120160762
06-28-2018
Anglea R.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anglea R.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120160762
Agency No. DIA-2014-00056
DECISION
On December 11, 2015, 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 November 6, 2015, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant was subjected to discriminatory harassment.
ISSUE PRESENTED
The issue presented is whether the Agency erred by finding discriminatory harassment with respect to only two of Complainant's claims, not all four which she raised.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Chief, of the Functional Requirements Division, GG-15 at the Agency's facility in Washington, D.C. Complainant alleged that she was subjected to discriminatory harassment by her supervisor (S1). Complainant filed a formal complaint on August 13, 2014, and then amended her complaint on January 16, 2015, to include a total of four claims. Two of the four claims were, for the most part, dismissed procedurally for failure to state a claim. Claim 1, was listed as claim 1(a) through 1(m) and involved various events that Complainant described as incidents related to her claim of hostile work environment. Only claim 1(n) was found to have stated a claim. The FAD found that Complainant failed to show how the incidents were sufficiently severe or pervasive enough to state a claim of unlawful discriminatory harassment. Claim No. 3, was dismissed because it involved Complainant's concern that her performance appraisal would be lowered if she filed an EEO complaint. Because Complainant had not yet received an appraisal, the Agency found that she was not aggrieved and did not state a claim.
The remaining incidents were as follows: Complainant alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1n. Complainant was subjected to an ongoing hostile work environment, based on reprisal (for filing EEO complaint DIA-2014-00059 on June 30, 2014) when, on January 16, 2014, she received her performance appraisal rating of 2.9/ from her supervisor (S1), her rater, and this rating was lower than the 3.0 rating she received on her mid-term assessment. Some of the actions considered in the rating occurred after the April 11, 2014, closeout date, and S1 served as both rater and reviewer on her appraisal;
2. based on retaliation (for filing her current EEO complaint on June 30, 2014, DIA-2014-00056), in July 2014, S1 had a security incident opened on an international activity that he approved, and he did not consult with her or others on Complainant's team for documentation authorizing the activity. The incident was immediately closed when the documentation was provided, however, the distraction impacted her ability to complete other tasks, and resulted in the Directorate of Operations (DO) leadership taking direct action to immediately cease activities approved by the DIA Director; and
4. Complainant was discriminated against based on reprisal (for filing EEO complaint DIA-2014-00059 on June 30, 2014) when, on January 16, 2014, she received her performance appraisal rating of 2.9/ from S1, her rater, and this rating was lower than the 3.0 rating Complainant received on her midterm assessment. Some of the actions considered in the rating occurred after the April 11, 2014, closeout date, and S1 served as both rater and reviewer on Complainant's appraisal.
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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant did not demonstrate that she was subjected to discrimination with regard to claim No. 2. Specifically, the Agency found that at the time of the security incident, S1 was not aware of Complainant's EEO activity and therefore could not have reprised against her. The Agency found that Complainant did not show that the Agency's legitimate, nondiscriminatory reasons were a pretext for discrimination.
With regard to claims 4 and 1(n), however, the Agency found that Complainant proved that the Agency subjected her to discriminatory harassment as alleged when S1 lowered her performance rating after she filed an EEO complaint. The Agency found that S1 could not articulate legitimate, nondiscriminatory reasons for his actions and his explanation of the events was not credible. The Agency found that Complainant demonstrated by the preponderance of the evidence that she was subjected to reprisal discrimination. The Agency also found that Complainant proved that she was subjected to a hostile work environment when false performance rating information was added to her record. The Agency ordered relief that included training, possible discipline for management, and $3,000.00 in nonpecuniary compensatory damages.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Agency's dismissal of claims 1 and 3 for failure to state a claim was improper as the claims show that she was aggrieved. Complainant also contends that she should have also had a finding of discrimination with regard to claim No. 2, as contrary to the Agency's argument, S1 was aware that she opposed EEO activity because she told him at least 50 times that she was going to file an EEO complaint.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
As noted above, the Agency found discrimination with respect to claim nos. 1(n) and 4, therefore, these matters are not in dispute in this decision.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not established a prima facie case of reprisal, with respect to claim 2. The Agency correctly found that Complainant did not demonstrate that S1 was aware of her EEO activity at the time he initiated the security incident. On appeal, Complainant argues that S1 was aware of her opposition to discrimination because she had threatened to file a complaint numerous times in the past. We find that threats do not amount to concrete actions and as she did not actually engage in EEO activity, we are not persuaded that S1 was not aware of her EEO activity. Notwithstanding the above, we find that even if Complainant's threats to file an EEO complaint amounted to EEO activity and that she established a prima facie case, the Agency articulated a legitimate non-discriminatory reason for the initiation of the security incident. S1 explained that he was concerned about Complainant taking unauthorized action in allowing one of her employees to take a trip to a foreign country download software, and that he raised that concern with the Chief Information Office (CIO), on July 1, 2014. Complainant has not proven that the Agency's reason was a pretext for discrimination. As the record indicates, the security incident was closed when documentation establishing that the trip was authorized was produced.
With respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements, that she disagreed with the fact that her other claims were dismissed because they failed to state a claim, she did not show how she was aggrieved with regard to claim no. 3 or that claims 1 (a) - (m) were severe or pervasive enough to establish a hostile work environment. In general, claims 1(a) - (m) involved isolated incidents occurring from April to July 2014 that involved management directions, hurt feelings, and concerns about what could happen. These incidents simply do not show that Complainant stated a claim of harassment.2
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant was discriminated against and subjected to a hostile work environment based on her prior EEO activity when she was given an unfairly lower performance evaluation with respect to claim nos. 1(n) and 4.
ORDER
The Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued:
1. The Agency shall provide eight hours of EEO training with special emphasis on Title VII and eliminating retaliation in the workplace the responsible management official, S1.
2. The Agency shall consider taking appropriate disciplinary action against S1. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline. If the responsible management official has left the Agency's employment, the Agency shall furnish documentation of their departure date(s).
3. The Agency will revise the 01 October 2013 - 11 April 2014 closeout performance appraisal to reflect the scores Complainant gave herself in the self-assessment, which resulted in an overall score of 3.4 (Successful). The language and scores from the rater will be replaced and new language and scores from an appropriate DO official will be inserted to support the 3.4 rating. A copy of this action shall be forwarded to the Commission's Compliance Officer.
4. The Agency shall pay Complainant $3,000.00 (three thousand dollars) in compensatory damages. Documentation regarding the completion of this actions shall be forwarded to the Commission's Compliance Officer.
The Agency shall provide a report of compliance with this order to the Commission's Compliance Office. Copies must also be sent to Complainant and her representative.
POSTING ORDER (G0617)
The Agency is ordered to post at its Defense Intelligence Agency, Functional Requirements Division located in Washington, D.C., copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and �1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
___6/28/18_______________
Date
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 Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
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