Odis S.,1 Complainant,v.Gina C. Haspel, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120182112 (E.E.O.C. Oct. 23, 2018)

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

Odis S.,1
Complainant,

v.

Gina C. Haspel,
Director,
Central Intelligence Agency,
Agency.

Appeal No. 0120182112

Hearing No. 570-2014-01344X

Agency No. 14-08

DECISION

On May 24, 2018, Complainant prematurely filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the
decision of an Equal Employment Opportunity Commission Administrative Judge (AJ) concerning
his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency
assigned as an Information Review & Release Manager, GS-14 at the National Reconnaissance
Office, Chief Information Officer, Information Management Services Office (IMS), Information
Review and Release Group in Washington, DC. He was responsible for the declassification of

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 While Complainant’s appeal was pending, the Agency issued a final order on June 4, 2018, fully
implementing the AJ’s decision. This perfected Complainant’s appeal, which is accepted.
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historical records and the National Reconnaissance Office’s public access programs such as the
Freedom of Information Act (FOIA).

On May 24, 2018, Complainant filed an EEO complaint, as amended, alleging in relevant part that
the Agency subjected him to discrimination and harassment based on his race (African-American),
sex (male), age (63), and reprisal for prior protected EEO activity when:

1. On July 11, 2013, his upper level supervisor (White male, age 56) and Security
management referred him to a Personnel Evaluation Board (PEB);

2. In September 2013, he received a negative and inaccurate performance appraisal for the
period covering November 2, 2012 through August 3, 2013 from his first line supervisor
(S1 - White male, age 47), with the support of his second line supervisor (S2 – White male,
age 50);

3. In September 2013, S1, with the support of S2, did not recommend him for promotion; and

4. On September 30, 2013, Security walked him out of the building, took his badge, denied
him access to Agency buildings, and denied him from participating in his performance
appraisal process.

Following an investigation, Complainant requested a hearing before an AJ. After both parties
submitted motions for summary judgment without a hearing, the AJ issued a decision without a
hearing finding no discrimination. The instant appeal followed. Thereafter, the Agency issued a
final order fully implementing the AJ’s decision.

The AJ found the following:

Related to his security clearance: Complainant was required to participate in multiple polygraph
sessions during his employment (to maintain his security clearance). He was repeatedly warned
against invoking countermeasures during several polygraphs to include the slowing of his
breathing. In 2008, during a reinvestigation to maintain his security clearance, Complainant was
asked to upload his foreign contact information into an electronic database. The Investigator
advised Complainant that she could not locate his handwritten foreign national contact information
which he said he previously submitted, and asked him to upload it to the database, giving a link.
In August 2009, Complainant received a Letter of Reprimand for engaging in countermeasures
during previous polygraph testing and failing to report his foreign national contacts in the
Agency’s electronic database. In the Spring of 2011, Complainant resumed having problems with
the polygraph process.

On July 11, 2013, a Security Manager (Security Manager 1 - White female, age 51) referred
Complainant to the Personnel Evaluation Board (PEB) based on his personal conduct (that
impacted his eligibility for a security clearance).
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As an employee of the CIA, Complainant was required to participate fully in the security process.
In the referral, Security Manager 1 explained it was based on Complainant’s:

• Failure to follow basic instructions during polygraph testing, including slowing his
breathing rate well below acceptable rates, despite repeated warnings;

• Unwillingness to cooperate during a security interview in February 2011, where he
provided one word answers to open-ended questions; and

• Failure to report foreign national contacts via the electronic database, despite being told to
do so on multiple occasions.3

On September 9, 2013, the PEB unanimously recommended that Complainant’s security clearance
and access approvals be revoked and that he be terminated. It was concerned that Complainant
may be manipulating his polygraph testing to disguise counterintelligence issues and about his
judgment, unwillingness to follow directions, questioning authority, and attitude. Security Director
1 approved the recommendation. On September 30, 2013, Security informed Complainant that his
clearances were revoked and he was terminated. Security retrieved Complainant’s badge and
escorted him from the building because he no longer had the clearance required to have access to
Agency facilities. Because he was no longer authorized to access the Agency’s classified computer
system, he was no longer able to participate in his performance appraisal process.

Performance Appraisal and Non-Recommendation for Promotion: The AJ found the
following. Complainant was rated as “Fully Successful” in all rated competencies. S1 wrote in
Complainant’s appraisal that he had real problems with interpersonal communication, that
Complainant’s entire staff of three officers left within the rating period; and at exit interviews, two
cited his communication style as their reason for leaving. S1 further wrote that he documented
persistent communication issues in his own interactions with Complainant, referring to specific
examples. S2 wrote in Complainant’s appraisal that in his own interactions with him and his
observation of Complainant’s interaction with S1, Complainant’s communication issue was
apparent. S1 did not recommend Complainant for promotion in September 2013, because of his
persistent issues with interpersonal communications.

Applying the facts to the law the AJ found as follows. There were no genuine issues of material
fact in dispute. The Agency articulated legitimate, nondiscriminatory reasons for its actions, so a
prima facie case analysis can be dispensed with. Regarding issues 1 and 4, Complainant does not
dispute receiving the Letter of Reprimand in August 2009, that his breathing techniques during his
polygraph examinations were repeatedly questioned, and that he was asked to upload his foreign
national contact information to an Agency electronic database, and failed to do so in 2008, and
again in 2009. Complainant attributed this failure to system error. Complainant has not shown that
the Agency’s actions in issues 1 and 4 were improper, based on the PEB recommendation.

3 In the referral, Security Manager 1 acknowledged that Complainant provided hardcopy foreign
national contact forms during polygraph testing.
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The AJ continued as follows. Regarding issues 2 and 3, the AJ referred to Complainant
acknowledging that he is not new to being an outsider in the workplace in response to S1 following
up with him by email where he wrote that four months back he advised Complainant that he had
communication issues as exemplified by the “terrible” morale in his group and his subordinates
saying he does not trust them. In addition to his staff, contractors also complained about
Complainant’s communication style. The Agency had valid reasons for rating Complainant
“Successful” and not recommending him for promotion.

The AJ found that because the Agency’s actions were not taken based on Complainant’s protected
classes, his complaint failed under the theories of disparate treatment and hostile work
environment. The instant appeal followed.

Complainant contends that his breathing was consistent throughout all his polygraphs, and that he
uploaded his foreign national contacts to the Agency’s electronic database in 2008. He disputes
that he has interpersonal communication issues. The Agency argues that the AJ’s decision should
be affirmed.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)
(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo
review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an
administrative judge’s determination to issue a decision without a hearing, and the decision itself,
will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant has failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

While Complainant disputes that he breathed in such a way to throw off the polygraphs, the AJ
correctly found that the Agency believed he did, given that this problem came up time and again,
i.e., his breathing technique during his polygraph examinations was repeatedly questioned.
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Further, since multiple people expressed that Complainant had communication style problems,
there was no genuine issue of material fact that the Agency believed this to be the case.

Complainant failed to prove that the Agency’s reasons for its actions were pretext to mask
discrimination, nor proved 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).

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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

October 23, 2018______
Date