0120160100
05-31-2018
Breanne H.,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
Breanne H.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120160100
Hearing No. 570-2012-00977X
Agency No. DIA-2011-00046
DECISION
On October 6, 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 September 8, 2015, 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.
BACKGROUND
Complainant is an Intelligence Officer (Human Intelligence Operations Coordination) at the Agency's Directorate for Human Intelligence, Office of Controlled Operations, Middle East/Africa Division. At the time of events giving rise to this complaint, she was detailed to the field in Bagram and Kabul, Afghanistan doing debriefing and reporting until her involuntary return to Washington, DC, effective May 14, 2012, cutting short her detail by three weeks.
On June 30, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected to a hostile work environment based on her sex (female) when:
1. from December 9, 2010 to May 13, 2011, her field first line supervisor (S1 - male) was hostile, demeaning and disrespectful in his actions and speech towards her.
2. from December 9, 2010, to May 13, 2011, S1 traveled with her male counterpart (Comparison 1) for two intelligence collection missions, but not with her.
3. on or about December 2010 to January 2011, S1 pulled her from a meeting without any explanation to go to another meeting.
4. in December 2010, S1 summoned her while she was getting ready (in the shower) in her room for a scheduled office cleaning.
5. in January 2011, S1 came very close to her desk and confronted her with an offensive fighting stance.
6. in January 2011, after asking S1 if he would like to join her in a meeting with Commander Joint Task Force ("CJTF")-101st personnel, he told her he was going to the meeting alone, which cast her in a negative light.
7. in February 2011, she addressed concerns about S1 with her field second line supervisor (S2 - male), but he got mad at her and told her to deal with it.
8. in February 2011, in a meeting with S1 in his private room, he made an offensive comment stating, "Why don't you show a little knee in your debriefings?"
9. on or about January or February 2011, S1 denied publication of some of her intelligence reports, saying they did not have reportable intelligence and not allowing them to be reviewed by an analyst or the Senior Intelligence Officer.
10. in February 2011, S1 cancelled a scheduled trip because he thought she was sick.
11. in February 2011, S1 was hostile and yelled at her in front of other colleagues regarding issue with military personnel.
12. on or about February or March 2011, S1 told her to wash dishes and wash/fold linens/towels in the day room, but did not give the same instructions to a male colleague.
13. in March 2011, S1 did not allow her to travel alone, but in May 2011, she discovered that S1 allowed Comparison 1 to travel for a debriefing alone.
14. in March 2011, S1 counseled her that analysts cannot be sources and that you cannot talk to them and dropped her sources and recalled associated reports, then in May 2011, her successor field second line supervisor (successor S2 - male) asserted that Department of Defense (DOD) analysts are legitimate sources.
Was Complainant subjected to discrimination and harassment based on her sex and reprisal (prior EEO activity under Title VII) when:
15. in March 2011, S1 treated male colleagues more favorably with his demeanor and speech, regularly went to the gym with them and had secret side conversations with a male collector.
16. in March 2011, S1 intrusively inquired about the nature of a doctor's visit which was intimidating and inappropriate.
17. on March 15, 2011, S1 intimidated and demeaned her by having her repeat back to him "10" in four different languages as a limit of reports you can generate from some documents.
18. on March 29, 2011, she was told that she could not complete certain reporting and S1 had another collector complete the reporting.
19. in April 2011, S1 did not allow her to travel to Kabul to pick him up and stop by the International Security Assistance Force ("ISAF") bazaar, but two male colleagues did so.
20. on April 21, 2011, she was directed by her third line supervisor (S3 - male) to move to Kabul with a job change with only one week's notice and no explanation.
21. in May 2011, due to being moved to Kabul, she missed two range dates in Bagram and she was not given the opportunity to go to the range with her colleagues to zero her weapon.
22. on May 10, 2011, after a visit to Bagram and an uncomfortable interaction with S1 in which he was hostile toward her, Complainant discussed her discomfort with S3, and no effort was made to address S1's behavior.
23. on May 12, 2011, she was "inhumanely" kicked out of the country by S3, with no explanation, informed that the action was taken under direct orders, and that she only had one hour to pack her belongings. She was denied access to government computers/e-mail and escorted out of the country.
24. on May 13, 2011, Complainant's home based second line supervisor located in the United States (home based S2 - male) informed her that she needed to return to the United States for her safety and the safety of others.
25. on May 13, 2011, she was escorted to the airport and was told she would be escorted to Dulles airport where there would be persons awaiting her arrival.
26. on May 16, 2011, home based S2 told her there were allegations against her made by personnel at the deployment site which was never mentioned to her during deployment. The allegations damaged her reputation.
27. in June 2011, due to her deployment being cut short, she lost deployment pay, did not receive deployment awards or evaluation(s), and was denied leave en route by home based S2.
28. in June 2011, home based S2 intimidated her and insisted she should not be a collector and she was moved to another branch and denied software access.
Following an investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ granted the Agency's Motion for Summary Judgment and issued a decision without a hearing finding no discrimination, which the Agency adopted.
During discovery, the Agency declined to answer Complainant's interrogatories and provide her requested documents because she untimely initiated discovery. Prior to issuing her decision, the AJ denied Complainant's Motion to Compel Discovery. Also, in her decision, the AJ wrote that although she granted Complainant's request to file a motion in response to the Agency's Motion for Summary Judgment, Complainant's motion was not timely received.
The AJ found that the following facts were undisputed. On incident 18, Complainant was not permitted to complete certain reporting because another female collector had already done so. On incidents 23 - 25, after several reports that Complainant was attempting to obtain classified information about individuals in the field and raising concern about her mental and emotional state, her detail was cut short and she was sent back to work in the United States, and was escorted for her safety and out of concern for her welfare. On issue 27, Complainant's en route leave request was denied because her return orders superseded all leave requests, and she received prorated hazardous duty pay, foreign post allowance and deployment bonus for the time she was deployed to Afghanistan. On issue 28, Complainant was assigned to a new billet as part of a reorganization.
The AJ found that Complainant did not establish prima facie cases of discrimination and hostile work environment based on sex and reprisal. The AJ determined as follows. On issue 1, Complainant identified S1's being hostile, demeaning, and disrespectful to her as traveling with Comparison 1, allowing males to travel alone, canceling her travel once, not allowing her travel to pick him up at the airport and attend an international bazaar, pulling her out of a meeting, summoning her to a scheduled office cleaning when she was in the shower, attending a meeting without her, denying publication of some of her intelligence reports for quality and not allowing them to be reviewed by an analyst or the Senior Intelligence Officer, and in March 2011, counseling her that analysts cannot be used as her sources and recalled associated reports but a few months later successor S2 asserted that DOD analysts are legitimate sources. The AJ found that regarding her sex hostile work environment claim, these actions were insufficient to show Complainant was subjected to an adverse employment action.
The AJ found that even assuming as true Complainant's allegation that on one occasion S1 asked her to show a little knee in her debriefings (of sources to get more information), and that on another occasion S1 came close to her desk and confronted her with a fighting stance (and the next month) yelled at her in front of others regarding an issue with military personnel, the actions complained of did not rise to the level of actionable harassment based on sex. The AJ found that the knee remark was isolated and not severe.
The AJ found that assuming arguendo that Complainant made out prima facie cases of sex and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. On incident 3, the AJ found that everyone on Complainant's team was required to attend the meeting about personal safety and security. On incidents 4 and 12, the AJ found the record showed that everyone on the team was required to assist with cleaning as it was a necessity of the deployment and Complainant admitted that it was happenstance that she was in the shower when she was asked to help others clean. On incident 9, the AJ found that Complainant provided no evidence to dispute that multiple individuals stated her reports did not meet intelligence reports standards, and conceded she struggled to learn how to write reports meeting Agency standards. On incident 19, the AJ found that Complainant did not address the Agency's explanation that she was not allowed to travel to pick up S1 at the airport and attend the bazaar because she was behind in her reporting. On incident 18, the AJ found that Complainant did not dispute the Agency's explanation that she was not allowed to write one report because it was already done by another collector (female) because Complainant failed to timely complete it. On issue 16, the AJ found that Complainant did not dispute that S1 inquired about her doctor's visit for a legitimate reason. S1 testified that Complainant was very sick the month before and he wanted to know if subsequent doctor's visit was associated with this, and out of concern for her well-being. On Complainant being escorted, the AJ found that Complainant provided no evidence to contradict the Agency's position that it is standard practice to have a person who is returning from deployment escorted. The AJ concluded that overall, Complainant failed to demonstrate that the Agency's actions were discriminatory - did not prove pretext.
The Agency adopted the AJ's decision. The instant appeal followed.
Complainant argues that she electronically filed her opposition to the Agency's motion for summary judgment in accordance with the new deadline as set by the AJ's order granting her request for a one day extension. She argues that even if the AJ did not receive her opposition, the record reflects several material facts in dispute, which are recounted in her hearing process Opposition to the Agency's Motion for Summary Judgement, which she includes with her appeal.
In opposition to Complainant's appeal, the Agency argues that Complainant submits no evidence that her email filing of her opposition to its motion for summary judgment was delivered to the recipients, and failure of service is supported by the fact that neither the Agency nor the AJ received it. The Agency argues that generally no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the hearing process.
ANALYSIS AND FINDINGS
As an initial matter, we find that the AJ did not abuse her discretion when she denied Complainant's motion to compel discovery. We agree with the Agency that Complainant untimely initiated discovery.
We also find that the AJ not reviewing Complainant's opposition to the Agency's motion for summary judgment was not an abuse of discretion. The record does not show that the AJ received Complainant's opposition. Nevertheless, we will consider her opposition as appellate argument.
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
We agree with the AJ that for most of the incidents, the Agency articulated legitimate, nondiscriminatory reasons therefor, and Complainant failed to prove pretext. For example, contrary to Complainant's argument, there was uncontroverted evidence corroborating successor S2's email that he was approached by three individuals in Kabul complaining about Complainant's behavior and expressing worries over her having access to weapons and ammunition. The record contains a contemporaneous email by one complainer who Complainant knew before working in Kabul. The complainer wrote that consistent with her past practice, Complainant by a specified action expressed an unwelcome interest in a romantic relationship with him in the workplace, and further, made comments about his family which he found unsettling. He wrote that he believed Complainant was mentally unstable and feared her having a weapon and security clearance. Report of Investigation (ROI), 000114. The record also contains a contemporaneous memorandum for the record detailing complaints by three identified individuals in Kabul expressing concern about Complainant's behavior - inappropriately variously asking for identifying information such as home of residence, and detailed questions on another's professional work, including his duties and where he traveled, and asking another where he was deployed. One complainer wrote that even after he told Complainant he does not share such information with others, Complainant persisted. ROI, 000132. In the approved Action Memo to cut off Complainant's detail and return her to the United States, management characterized this questioning as raising counterintelligence alerts - attempting on numerous occasions to gain insight on covered operations and obtain the true name, residence, and employment information of deployed personnel, making the recipients of her questions have high concern for their personal safety, and wrote that that a colleague witnessed Complainant making sexual innuendos toward another colleague, making both personnel uncomfortable. Complainant failed to show that the Agency's explanations for incidents were pretext to mask discrimination or reprisal.
On the incidents, assuming they were true, where the Agency did not give a legitimate, nondiscriminatory reasons therefore, i.e., the knee remark, the fighting stance, and the yelling incident, we agree with the AJ that these incidents were not sufficiently severe or pervasive to rise to the level of actionable harassment based on sex (incidents 5, 8 & 11).
Complainant has failed to prove discrimination. 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.
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. 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
May 31, 2018
__________________
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.
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