Katherine K.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Jan 31, 2020

2020000055 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Katherine K.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Request No. 2020000055 Appeal No. 0120180650 Hearing No. 570-2015-00742X Agency No. DIA201400030 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Katherine K. v. Dep’t of Def., EEOC Appeal No. 0120180650 (July 26, 2019). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). In the underlying complaint, Complainant alleged that the Agency subjected her to discrimination and a hostile work environment based on sex (female) and reprisal (prior protected EEO activity). In alleging that she had been subjected to a hostile work environment, Complainant identified numerous instances of alleged harassment, dating back several years. She identified instances relating to assignments or reassignments, including the assignment or reassignment of duties, canceling temporary duty assignments, and not being selected for positions. She identified 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. 2020000055 2 instances relating to performance assessments, including lower performance appraisals, changes being made in her rating chain, not receiving a mid-point review, not having had discussions about her performance objectives, being placed on a performance improvement plan (PIP), and not being provided feedback on her performance appraisal. She identified instances relating to communications, including interruptions or confrontations during meetings and briefings; cancelation of meetings and briefings; being excluding from meetings, briefings, conferences, and email disseminations; and inappropriate comments during meetings and briefings. She also identified instances relating to general administrative or managerial decisions, including the denial of office space and equipment, being directed as to whom she should staff time and attendance sheets, and denial of her request for exemption from furlough. Complainant also alleged the Agency discriminated against her in reprisal for prior protected EEO activity when, on September 30, 2014, she was notified by the Deputy J2 USCYBERCOM (Deputy J2) that: (1) she was being involuntarily reassigned from USCYBERCOM to an unidentified job in the DIA Chief of Staff office, even though she had advised him of her interest in assignment to a supervisory analytic work role in USCYBERCOM; (2) the Deputy J2 informed her that she would not return to USCYBERCOM J2 following completion of her one-year temporary reassignment to DIA HQ in early October 2014, and that she would not be assigned to a newly announced vacant supervisory position at USCYBERCOM J2 - a position for which she was highly qualified; and on or about October 22, 2014, she was not selected for the Senior Expert for Military Cyber Operations (JAN 102060-02) for which she applied in April 2014 and interviewed for on July 18, 2014, as a result of Deputy J2’s position on the panel Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing and thereafter issued a decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. Our previous decision affirmed the final order finding substantial evidence in the record to support the AJ’s decision. We noted that Complainant’s harassment allegations can generally be described as relating to communication issues, and/or disagreements with managerial decisions, including decisions regarding assignments or reassignments, performance assessments, and general administrative matters. We found that such allegations were not sufficiently severe or pervasive to have altered the conditions of Complainant’s employment. In addition, with respect to Complainant’s disparate treatment claims, we found that Complainant failed to show that the Agency’s legitimate, non-discriminatory explanation for its employment actions were a pretext or otherwise motivated by discriminatory or retaliatory animus. In her request for reconsideration, Complainant expresses her disagreement with the appellate decision and reiterates many arguments previously made on appeal. The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 2020000055 3 Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Complainant has not presented any persuasive evidence to support reconsideration of the Commission’s decision. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120180650 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 January 31, 2020 Date