Jerome D.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

May 24, 2018

0120181018 (E.E.O.C. May. 24, 2018)

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

Jerome D.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120181018

Hearing No. 570-2016-00121X

Agency No. DIA-2014-00075

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated January 30, 2018, finding no discrimination
regarding his 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,
we AFFIRM the Agency’s final order finding no discrimination.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a member of Class #1402,
Joint Military Attaché School (JMAS), GG-0132-14, in Defense Intelligence Agency (DIA),
Pentagon, Washington, D.C.

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 It appears that Complainant filed the instant appeal on January 29, 2018, prior to the Agency’s
issuance of its final order. Since the Agency subsequently issued its January 30, 2018 final
order, we will review such accordingly.
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On November 7, 2014, Complainant filed his complaint alleging that:

(1) He was subjected to a hostile work environment based on his national origin (Afghan)
when:

(a) In June 2014, LTC (Lieutenant Colonel), Joint Military Attaché School (JMAS)
Instructor (S1) for Class #1402, targeted him for turning in JMAS photography
assignments late, after being informed by JMAS photography staff that other
students’ assignments were being submitted untimely;
(b) In June 2014, S1 verbally informed him that S1 perceived that he had time
management issues and feared it would impact the gaining Defense Attaché Office
(DAO);
(c) In July 2014, S1 stated that he was purposefully late and missed class without proper
coordination, despite S1 informing him of his requirements to resolve matters
concerning the orders for his upcoming Permanent Change of Station (PSC);
(d) In July 2014, S1 stated that he failed to properly coordinate his leave to attend his
spouse’s U.S. Citizenship interview, when, in fact, he informed S1, via email and
approached S1 on two separate occasions;
(e) On July 8, 2014, he received a verbal reprimand from his Colonel, JMAS,
Commandant (S2) for allegedly failing to properly coordinate his leave (July 7, 2014)
with S1;
(f) On July 8, 2014, S1 demonstrated a level of resentment towards him when S1
verbally informed him that S1 heard from others (names not specified) that he was a
“smooth talker” and that he had been “hooked up” by an identified SES (Senior
Executive Service), Defense Attaché Service (DAS), when that SES placed him in the
(redacted) billet;
(g) In mid-July 2014, S1 approached him during a classroom break and asked why he
was “suddenly quiet” and “no longer engaged” in asking questions during class
lectures;
(h) In mid-July 2014, S1 asked another LTC, DAO 11 Cadre Lead if he could be trusted;
(i) In mid-July 2014, S1 asked his Cadre members (specifically, LTC described in claim
(h), an identified Major, and an identified Captain) if he was a “team player” and if he
was the “weak link on the team;”
(j) On July 29, 2014, S1 and S2 verbally informed him that he would not be graduating
with the JMAS Class #1402 because he did not have an “outstanding” Dragon
Warrior performance;
(k) On July 29, 2014, he informed S1 and S2 that the JMAS Standard Operating
Procedure (SOP) required a board be convened for graduation reconsideration, which
led him to believe that JMAS failed to follow its own standard operating procedures
set forth in the JMAS SOP 3; and
(l) On September 8, 2014, an identified Acting Director, DAS - Asian Pacific Regional
Center (APRC), informed him that his billet was moving from DAS-APRC to
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Defense Clandestine Service (DCS), Chief of Staff Division, where he was assigned
administrative tasks.

(2) He was subjected to discrimination based on his national origin (Afghan) when on July 8,
2014, he received a verbal reprimand from S2 for allegedly failing to properly coordinate
his leave (July 7, 2014) with S1.

(3) He was subjected to discrimination based on his national origin (Afghan) when on July
29, 2014, S1 and S2 verbally informed him that he would not be graduating with the
JMAS Class #1402 because he did not have an “outstanding” Dragon Warrior
performance.

(4) He was subjected to discrimination in reprisal for prior EEO activity when on September
8, 2014, the Acting Director, DAS-APRC, informed him that his billet was moving from
DAS-APRC to DCS, Chief of Staff Division, where he was assigned administrative tasks.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 10, 2017, the Agency filed a Motion for
Summary Judgment and on April 3, 2017, Complainant filed a response to the Agency’s Motion.
On December 27, 2017, the AJ, after considering the parties’ subsequent motions and replies,
issued a decision without holding a hearing, finding no discrimination. The Agency’s final order
implemented the AJ’s decision. Complainant appeals the Agency’s final order and contends that
the AJ improperly granted summary judgment without a hearing.

ANALYSIS AND FINDINGS

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.

Upon review, we find that the AJ properly issued a decision without a hearing because no
genuine dispute of material fact exists. Furthermore, despite Complainant’s contentions on
appeal, we find that the AJ properly denied Complainant’s Motion to Compel Deposition of DIA
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Agency Head and Costs of Depositions, Cross-Motion for Summary Judgment, Motion for
Clarification and Request to File a Surreply, additional discovery, and Motion for
Reconsideration. We note that the AJ granted Complainant’s request for an extension to file his
Opposition to the Agency’s Motion for Summary Judgment.

In this case, the AJ, in his decision, adopted the facts numbered 37 – 148 in the Agency’s
Statement of Undisputed Facts, and pages 13 - 19 within the Agency’s Motion, i.e.,
management’s legitimate, nondiscriminatory reasons for its actions. The AJ, assuming arguendo
that Complainant had established a prima facie case of discrimination, determined that the
Agency articulated legitimate, nondiscriminatory reasons for its actions.

Here, Complainant alleged that he was subjected to harassment while he was at JMAS.
However, Complainant acknowledged that he did not inform his management of harassment at
the relevant time because of the fraternal culture at JMAS. He stated that he later reported
harassment after July 28, 2014, when he was told he could not graduate with JMAS Class #1402.

Regarding claim (1)(a), S1 stated that Complainant was notified of his tardy submission of
photography reports which were not submitted until he was counseled by S2.

Regarding claim (1)(b), S1 stated that at the relevant time, S1 was talking to Complainant about
his tardiness, i.e., coming to class significantly late, and he admitted to S1 that he was having
some difficulties and he would do better and fix the problems. Complainant acknowledged the
foregoing conversation. Complainant also indicated that he documented his own tardiness twice.

Regarding claim (1)(c), S1 stated that at the relevant time, Complainant missed class without
permission. Complainant acknowledged that at the relevant time, he was in the building all day
getting his PCS documentation done so he could go to the citizenship ceremony of his wife.

Regarding claim (1)(d), Complainant indicated he approached S1 in advance of him missing
class to attend his wife’s citizenship ceremony. S1 indicated that at that time, S1 told
Complainant to follow proper procedures for his leave by obtaining written approvals from his
instructors but Complainant failed to do so.

Regarding claims (1)(e) and (2), S2 acknowledged that he verbally reprimanded and counseled
Complainant on a myriad of things including his failure to properly coordinate his leave and
timeliness with the reports or homework, getting to class on time, ditching class, his behavior in
class, and his attitude and behavior. Complainant acknowledged that he was previously
informed by S2 about the need for a two-day advance notice for any absences and his tardiness
to his class, and he assured S2 that he took full responsibility for not properly coordinating his
leave at issue and that he would refocus and show that he was capable to learn and carry out the
task of JMAS.

Regarding claims (1)(f), S1 indicated that he did not recall the alleged incident.

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Regarding claims (1)(g), S1 indicated that as Complainant was walking out of the classroom, S1
merely asked him if he was okay as S1 noticed he had been really quiet lately and distraught and
S1 was actually concerned for his well-being. S1 stated that Complainant responded that he was
fine and he was focused on getting work done.

Regarding claims (1)(h) and (1)(i), S1 denied asking the identified LTC, Complainant’s
teammate, if Complainant was trustworthy or asking others if he was a team player in those
words. Rather, stated S1, S1 spoke to the teammate and asked him about Complainant’s
performance in class and his assessment of his classmate without instructors being present and
how his behavior was. S1 stated that the teammate’s responses were very encouraging in that
although he was a little bit concerned about Complainant, he told S1 that Complainant was a
good participant in class and with the group and a good team player and a key player. S2
indicated that instructors regularly spoke with teammates if a student was struggling in order to
get a better picture of the student and if the team member was a burden, a help, or a little of both.

Regarding claims (1)(j), (1)(k), and (3), S2 stated that at Dragon Warrior exercise, Complainant
was the last student to write his 5th passing report; and he failed the border crossing exercise.
Complainant does not dispute this. S1 indicated that he made his recommendation not to
graduate Complainant from JMAS because of his poor performance throughout the course and
some of the written counseling that had occurred, his demeanor during the detention scenario,
and other incidents that occurred in the course such as missing courses without proper protocol.

In his letter dated July 28, 2014, to the Chief of the Operations Training Department and the
DAS Director, S2 indicated that JMAS recommended not to graduate Complainant based on,
among other incidents: late to class; late homework assignments; not attending classes without
prior approval; improper conduct during a terrorist hostage training scenario; and poor
performance at Dragon Warrior exercise.

S2 stated that although students could be removed without a Student Review Board (SRB),
JMAS decided to give Complainant a SRB review because he was claiming that JMAS was out
to get him and tried to kick him out.

In his letter dated August 1, 2014, to the SRB, Complainant requested he be permitted to
graduate from JMAS. Therein, he indicated that: he was of Afghan-Persian decent; he initially
took JMAS for granted; during the first half of class, he missed class to resolve PCS issues and
deal with his wife’s U.S. citizenship process; he realized that he took on too much; he should
have maintained better communication with his instructors; and after S2’s reprimand, he quickly
adjusted and refocused his efforts.

The record reflects that a number of senior military officers, JMAS instructors, JMAS
psychologist, JMAS teammates, and S2 submitted their recommendation to the SRB concerning
Complainant’s suitability for JMAS graduation. Some recommended for Complainant’s
graduation and some did not.

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The record indicates that after a review of statements pertinent to Complainant, including his
August 1, 2014 statement, and his performance during the JMAS class, the SRB recommended,
by unanimous vote, that he be removed from training because he did not meet suitability
requirements for work in the DAS. The Director, Academy for Defense Intelligence, concurring
with the SRB’s recommendation, ultimately made the final decision that Complainant would not
graduate from JMAS.

Regarding claims (1)(l) and (4), the DAS Director stated that since Complainant did not graduate
from JMAS, under the Agency policy, he was returned to the position he was in prior to
attending JMAS, i.e., to the Defense Clandestine Service.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the portions of the Agency’s
statement of undisputed facts. Upon review, the AJ found and we agree that there is no evidence
that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. Regarding
his claim of harassment, we find that Complainant failed to establish the severity of the conduct
in question or that it was related to any protected basis of discrimination. Despite Complainant’s
arguments on appeal, he clearly acknowledged that he did not perform well at JMAS. Upon
review, we find that Complainant failed to show that there were any similarly situated employees
not in his protected groups who were treated differently under similar circumstances. Based on
the foregoing, we find that Complainant failed to show that the Agency’s action was motivated
by discrimination.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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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.
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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 24, 2018
Date