Louvenia S.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Aug 22, 2018

0120161915 (E.E.O.C. Aug. 22, 2018)

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

Louvenia S.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120161915

Agency No. FBI-2012-00263

DECISION

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 March 29, 2016, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Special
Agent, Counterterrorism Division, GS-15, at the Agency’s facility in Washington, D.C. From
January 11 to July 5, 2012, she was assigned as a Senior Liaison Officer, Joint Duty Detailee to
the Central Intelligence Agency’s (CIA) Counterterrorism Center. On September 14, 2012,
Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work
environment on the bases of her sex (female), disability, age (43), and in reprisal for prior
protected EEO activity when:

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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1. on an unspecified date prior to January 2012, her former section chief (SC1)
shared confidential information about her mental health, time and attendance
pattern, and personal relationships with her detail section chief (SC2) before she
reported to the CIA detail;
2. since January 2012, she was not tasked with serving in a senior management
acting assignment;
3. during her detail with the CIA in January 2012, she was constantly told that she
was emotional and could not handle the detail, she was never introduced to senior
executive service employees, male colleagues made derogatory comments about
her aggressive approach to cases, and she was not included in senior level
meetings at the CIA;
4. the acting Deputy Director for Law Enforcement (ADD) undermined and
degraded her authority and reputation, tried to intimidate and threaten her, worked
her areas of responsibility without notifying her, and scrutinized her work
performance;
5. on May 17, 2012, her supervisors cited mental health issues in her mid-year
performance review and continuously advised her to step down and take a less
stressful position;
6. on June 7, 2012, although she advised the ADD that she would be attending a
conference in Virginia Beach, Virginia, he questioned others about her
whereabouts and complained that her travel should have taken three hours instead
of six;
7. on June 20, 2012, she was referred to the Employee Assistance Program (EAP)
based on false and misleading information;
8. on June 20, 2012, SC2 advised her that she needed to improve her work
performance in the critical job element of “providing a professional service and
relating with others;”
9. after July 22, 2012, management removed her from her detail at the CIA and
placed her in a position that was not commensurate with her rank and experience;
10. from July 23, 2012, through August 2012, management did not provide her with a
performance work plan or a “white paper” to be included in her performance
appraisal report; and
11. on July 31, 2012, management did not notify her that an Internal Investigations
Section investigation was initiated against her for time and attendance fraud,
insubordination for repeatedly missing meetings; and for sending unprofessional
emails.

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 (AJ). Complainant requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

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ANALYSIS AND FINDINGS

On appeal, Complainant contends that the Agency attempted to prevent her from pursuing the
instant complaint by overly redacting the original report of investigation (ROI), which caused her
to withdraw her request for a hearing. Specifically, she states that her attorney determined “it
was impossible to proceed to a hearing” or “pursue meaningful discovery” based on the original
ROI and, therefore, decided to withdraw her request for a hearing. We note, however, that
Complainant never requested that the AJ order the Agency to provide a less redacted copy of the
ROI, or otherwise supplement the record; nor did she make it clear that the withdrawal of the
request for a hearing was related to the perceived inadequacy of the ROI. Additionally, the
record shows that Complainant was provided with a less redacted copy of the ROI five months
before the issuance of the Agency’s decision. This ROI is included in the record and we deem it
to be minimally redacted and sufficiently developed to determine whether discrimination
occurred. We find that Complainant had adequate time to object to the Agency’s redactions prior
to the instant appeal, and that she had adequate time to review the ROI and formulate arguments
on appeal as to the merits of the Agency’s decision which she did not do.

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”).

It is well-settled that harassment based on an individual’s disability is actionable. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment,
the complainant must show that: (1) she is a qualified individual with a disability covered under
the Rehabilitation Act; (2) she was subjected to unwelcome conduct; (3) the harassment
complained of was based on her disability; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Svs. Inc., EEOC Notice No. 915.002 (March 8,
1994).

In other words, to prove her harassment claim, Complainant must establish that she was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of her protected bases.
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Only if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself. Here, we find that, after careful consideration of the evidence of
record, Complainant has failed to show that the incidents occurred as alleged or were motivated
by discriminatory animus toward her sex, age, disability, or prior EEO activity.

The record shows that Complainant entered into the Joint Detailee position on January 11, 2012,
and was informed before the detail began that attending a 7:15 am Director’s pre-brief meeting
was a requirement of the position. The record shows that Complainant repeatedly missed this
mandatory meeting, despite being counseled by SC2 regarding her tardiness and absenteeism,
and being provided with the option to attend from several different locations. The record shows
that SC2 was later informed by SC1 that Complainant had also displayed a history of attendance
and tardiness issues in a prior assignment. SC2 states that he continued to counsel Complainant
regarding her failure to attend the pre-brief meetings, however a review of Complainant’s time
and attendance records show that the problems continued to worsen over the course of the detail.
The record also shows that SC2 counseled Complainant regarding the need to get prior
authorization related to the conference she attended in Virginia Beach, Virginia, for which she
claimed two days of travel time.

The record further shows that Complainant sent numerous emails to employees of her Agency,
as well as other agencies, which were deemed to be “inflammatory” and unprofessional, as well
emails which were viewed as personal in nature and sent outside of duty hours. The record
shows that Complainant was reported by several management officials for inappropriate and
unprofessional behavior when she began “badgering everyone in [the] unit” to send her
documentation supporting her contention that she was performing well in the detail. Specifically,
Complainant was sending mass emails to CIA employees requesting positive feedback about her
performance. The record contains copies of the emails referred to by management, and a review
of the content of these emails supports management statements regarding the personal,
unprofessional, and at times profane nature of their content. Specifically, we note that
Complainant sent an email on May 2, 2012, to a coworker with whom she claimed she had been
having a romantic relationship, as well as five other employees including management officials,
in which she stated that she hoped he would “rot in hell”, repeatedly called him a “loser”, stated
she “couldn’t screw a chubby lying guy”, and in a follow-up email, stated that “he probably has a
small pecker as well.” We find that the content of these emails, as well as her decision to send
them to multiple Agency employees, support the Agency’s action in referring Complainant to
EAP, and in referring the entire matter to the Office of Professional Responsibility.

As to Complainant’s mid-year performance appraisal, we find that the record supports
management’s assessment that Complainant needed to improve her performance in the areas of
providing professional service and interpersonal skills. In so finding, we note that the record
contains statements from coworkers that support management’s contention that Complainant
acted inappropriately in meetings and was found by those in the Detailee Section to be a poor fit
for the position due to her unprofessional behavior, chronic tardiness, and failure to attend
meetings. Additionally, we find that, given the substance of the emails contained in the record
and the statements from coworkers and management officials regarding her behavior, the
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Agency was justified in not placing her in a senior management acting assignment (even if this
considered a discrete claim), and eventually removing her from the detail position. In sum, we
find that the evidence does not establish that the events at issue either occurred as alleged, or
were the result of discriminatory animus toward her sex, disability, age, or prior EEO activity.
As such, we find that Complainant has not established that she was subjected to discriminatory
harassment.

For purposes of analysis, claims (9)-(11) can be viewed as discrete incidents, outside the alleged
harassment. To prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of age,
disability, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (9), the record shows that the
Assistant Director decided to remove Complainant from the detail position due to Complainant’s
well documented issues with tardiness and absenteeism from meetings, as well as the emails
addressed above. With respect to claim (10), the record shows that Complainant did not receive a
new performance work plan because she had received one on February 6, 2012, and her job title
and grade level remained the same after the transfer.

Finally, as to claim (11), the record shows that an Internal Investigations Section, Inspection
Division investigation was initiated against Complainant for time and attendance fraud,
insubordination for repeatedly failing to attend meetings, and for sending unprofessional emails.
The evidence of record contains extensive documentation supporting an investigation into these
allegations, and we find that Complainant has not shown that the Agency’s articulated reasons
for its actions were pretextual, or were motivated by discriminatory or retaliatory animus.

CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination.

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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. 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.
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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

August 22, 2018
Date