0120152742
12-29-2017
Enola L.,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
Enola L.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120152742
Agency No. DIA-2014-00076
DECISION
On August 21, 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 July 20, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 decision (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination as alleged.
ISSUE PRESENTED
The issue presented is whether the FAD erred in finding that Complainant was not subjected to discrimination based on her perceived disability, age, or prior EEO activity,
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sociocultural Analyst, GS-13 at the Agency's Sociocultural Analysis Section, Intelligence Systems and Programs, Joint Intelligence Center Special Operations Command facility in MacDill AFB, Tampa Florida. On October 7, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (perceived mental impairment), age (67), and reprisal for prior protected EEO activity when:
1. On July 24, 2014, she was placed on administrative leave, effective immediately, due to her actions on July 23, 2014, and previous displays of adverse behavior that made her co-workers feel unsafe.
2. On September 15, 2014, the Chief, Intelligence Systems and Programs, Special Operations Command (S1) placed her on a Performance Improvement Plan (PIP) for not meeting the performance standards of her position as a Sociocultural Analyst, GS-13.
3. On October 6, 2014, the Senior Intelligence Analyst, (S2), placed her on a PIP for not meeting the performance standards of her position as a Sociocultural Analyst, GS-13.
4. Based on retaliation on October 10, 2014, S1 gave her a negative performance 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 FAD pursuant to 29 C.F.R. � 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, the Agency indicated that it articulated legitimate nondiscriminatory reasons for its actions, namely, that Complainant was placed on administrative leave due to her actions on July 23, 2014, and previous displays of adverse behavior that made her coworkers feel unsafe. During a meeting with management, Complainant indicated that she felt that she was backed in a corner and that she going to have to go the EEO because she felt she could not get resolution about her concerns with the contractors, and a lack of recognition that she was performing assigned work and was "adhering to the annual work plan." She indicated that management failed to recognize that their office operated differently from the office that the new managers had come from. Following the meeting, Complainant went back to her desk and told a colleague, "Look, I've got to get out of here. I've got to leave here. I don't know if I'm going to leave in a body bag or under guard, but I've got to leave here." Complainant acknowledged that the comment was ill-advised."
The following day, Complainant was told that she was being placed on administrative leave pending investigation because her coworkers believed she was a threat. Complainant believed however, that she was placed on administrative leave because she threatened management with EEO action. Complainant was off work for five weeks, during which time an investigation was carried out and she was found to not be a threat.
With respect to claims 2 and 3, the Agency explained that Complainant was placed on a PIP because she was not meeting the expectations of her position, she had challenges doing basic "current intelligence" and her writing was not very coherent. Further, management indicated that there were ongoing difficulties with Complainant not using the proper templates, not using proper grammar, and repeatedly not following the collaborative process. S1 stated that often, when Complainant was asked for work product for coordination, she would indicate that she had already sent the document out and this was problematic for management. Management also indicated that Complainant was repeatedly counseled regarding the quality of her articles. The Agency indicated that the PIP was delayed in claim 2 because Complainant was placed on administrative leave. On October 6, 2014, she received the PIP, claim 3, after it had been approved. Complainant successfully completed the PIP in January 2015, under the supervision of a new supervisor.
Regarding, claim no. 4, the Agency indicated that Complainant was given a negative performance appraisal based on her performance. S1 indicated that he gave Complainant the rating at issue based on his evaluation of her performance from October 1, 2013 through July 23, 2014. He explained, at length, specific instances of her poor performance that led him to evaluate her as rating a "2.0" on a "5.0" scale for most of the rating areas which led to an over-all rating of 2.4. He stated he used the same detailed metrics to evaluate Complainant and all the individuals whom he rated that year. He noted one of the areas in which he marked her negatively was on leadership and integrity. S1 stated part of the reason for this was the fact that Complainant did not apparently possess the Ph.D., she represented herself as having. When Complainant later submitted her request for reconsideration of her rating, he stated that he decided not to make any changes because she did not provide evidence that would have influenced him to change the scores he had initially given her. Management denied Complainant's age, perceived mental disability, or prior EEO activity played a role in any of these actions. The Agency found that Complainant did not demonstrate that the Agency's articulated legitimate nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that management targeted her because of her age. She maintains that management officials outwardly questioned whether she could continue to perform her job, which required extensive travel to combat zones, stating that at her age, she "couldn't stand the rigors of the trip." Complainant acknowledges that her statement "in a body bag or under guard," was ill considered and was stated in the heat of the moment. Complainant maintains that in her 30-year history working for the government, there is no evidence that she has ever made such a statement before. And, if management truly believed she posed a threat, it would have removed her immediately from the premises, as it had in other such situations in the past. The fact that management allowed her to return to work amongst her co-workers for several hours before taking any action could lead a reasonable person to conclude that management did not truly believe that Complainant posed any danger. This evidence, coupled with the fact that management only acted after she kept her appointment with the EEO, is evidence that management harbored retaliatory animus. The fact that one of her supervisors bragged that he "finally got rid" of Complainant after she was placed on leave further supports a finding of such animus. Complainant asserts that there were statements in the record supporting her claims of ageism and yet the FAD did not find evidence of ageist statements.
Finally, Complainant contends that she has established sufficient evidence of pretext for both her age discrimination and her reprisal discrimination claims. Complainant contends that because she has established a prima facie case of age discrimination and reprisal discrimination, she needs to produce "very little evidence of discriminatory motive" to meet her burden of establishing pretext. Complainant contends that her evidence is sufficient by itself to establish intentional discrimination.
In response, the Agency contends that Complainant did not establish a prima facie complaint of age discrimination. The Agency contends that Complainant made bare assertions and conclusory statements unsupported by any evidence in the record. The Agency contends that one of the coworkers mentioned by Complainant referenced a manager that was not even named in the complaint. In fact, the coworker does not testify that any of the named responsible management officials made any of the alleged ageist comments, and, even the statements attributed to the uninvolved manager could not be deemed ageist without additional evidentiary support. The manager described Complainant as having an "outdated" or "old school" approach to analytical thinking. The Agency asserts that this in and of itself is not an indicator of an employee's age. Rather, it is an indication of the manner in which a person has worked over a period of time, irrespective of age, or the methodologies learned and used by an employee. The Agency contends that there is no evidence in the record supporting the notion that the manager's comment was in any way related to Complainant's physical age. Further, another coworker indicated comments were made that Complainant was "old and needs to retire" but these comments were not attributed to management. The coworker indicated that much of the negative working environment and the ageist statement was due to a contractor.
The Agency also contends that Complainant did not show that its articulated legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency maintains that the coworker that attributed the statement that "I finally got rid of her," to S1 indicated that he was not a part of the conversation but merely overheard the conversation in question. The Agency contends that the conversation involved S1's efforts to document work expectations and counseling of Complainant. There is no evidence in the record that even if the comment was accurately reported that it was related to Complainant's protected bases. The Agency asserts that the alleged statement reflects management's overall frustration with Complainant's longstanding refusal and failure to perform as expected, her failure to abide by established procedures, and her misrepresentation of her academic background.
Finally, the Agency maintains that Complainant's characterization of the record is not credible and should not be considered. The Agency asserts that Complainant exaggerated evidence, misconstrued statements, using them out of their original context, and wholly fabricated their actual intent. The Agency argues that the FAD should be affirmed.
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").
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that she was placed on paid administrative leave because she made a remark that was interpreted as threatening, she was placed on a PIP because her work was not satisfactory to her new management team, and finally she received a low rating because her work was not satisfactory to her new management team. We find that Complainant did not show that these reasons were pretext for discrimination. We find that she has not demonstrated that discriminatory animus was involved in these decisions. While Complainant argues that these incidents occurred because of her EEO activity, perceived mental disability, and age, she conceded that she had a problem with the change of command and the way the new managers did things.
Further, Complainant contends that these incidents and her overall treatment were because of her age, yet she provided no evidence that the managers involved made decisions with regard to her age. Based on witness testimony, the comments made about Complainant's age and questions about when she was going to retire were made by a contractor and not S1 or S2. Moreover, there is no evidence that she reported the ageist comments to S1 or S2 so that they could take action. We find that Complainant has not shown that the Agency's reasons were pretext for discrimination.
With respect to Complainant's contentions on appeal, we agree with the Agency that Complainant mischaracterized the evidence regarding S1 and S2's involvement in the ageist comments and that other than her own assertions about all of her claims she has not provided evidence to support a finding of discrimination based on her age, perceived disability or prior EEO activity.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not show that she was subjected to discrimination.
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
_12/29/17_________________
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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0120152742
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