Raquel T.,1 Complainant,v.Dan Coats, Director, Office of the Director of National Intelligence, Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

0120181151 (E.E.O.C. Aug. 13, 2019)

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

Raquel T.,1
Complainant,

v.

Dan Coats,
Director,
Office of the Director of National Intelligence,
Agency.

Appeal No. 0120181151

Agency No. 2017-F-003

DECISION

On February 21, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 22, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Information Technology (IT) Project
Manager at the Agency’s Office of the Director of National Intelligence (ODNI)'s National
Counterterrorism Center (NCTC), Mission Systems in 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.

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On December 30, 2016, Complainant filed a formal EEO complaint alleging the Agency
discriminated against her on the bases of race (African-American), sex (female), color (Black),
disability, and age (under 40)2 when:

1. she was subjected to harassment/a hostile work environment as follows:

a. on August 23, 2013, management denied her training to attend Senior Service
School, and again denied training on January 27, 2014, to attend a Senior
Security Professional Seminar;

b. on March 19, 2014, management reassigned her from the Assessment Team to
the Program and Policy Team. Complainant alleged this reassignment
resulted in her exclusion from internal meetings, not being given tasks, and
not being included as part of the team;

c. on May 19, 2014, management required her to use two hours of annual leave
instead of allowing her to claim Maxiflex, and on June 13, 2014, management
accused her of abusing Maxiflex privileges;

d. on April 16, 2014, the Program and Policy Team Lead screamed and yelled at
her regarding a follow-up e-mail she sent to a customer; and

2. on November 5, 2014, during a discussion with management officials, she received a
Performance Evaluation Report (PER) which contained conflicting and negative
statements regarding her experience, performance, and interactions.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on
January 22, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Hostile Work Environment

2 The record reflects that in its Acceptance letter, the Agency dismissed age as a basis because
Complainant was under 40 at the time. The Agency also noted that while Complainant identified
color in her complaint, it added color as a basis.

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To establish a claim of hostile environment harassment, Complainant must show that: (1) she
belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

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 – in this case, her race, sex, color, and
disability. Only if Complainant establishes both of those elements, hostility and motive, will the
question of Agency liability present itself. Here, Complainant simply has provided no evidence
to support her claim that her treatment was the result of her race, sex, color, and disability.3

On December 14, 2014, Complainant began working in Mission Systems as an IT Project
Manager. During the June 14, 2015 and June 26, 2016 rating period, Complainant worked in
Mission Systems’ Program Control Branch (“PCB”). Following her position in PCB,
Complainant was reassigned to another NCTC office until September 2, 2016. On September 4,
2016, Complainant was assigned to the Central Intelligence Agency (CIA) Talent Center for
Excellence.

On October 1, 2015, a named Agency official became the Branch Chief of PCB and
Complainant’s first line supervisor/rater (“supervisor”). The supervisor and Complainant
worked together to revise Complainant’s performance objectives and on March 9, 2015,
Complainant accepted the objectives in the PER system. During the relevant period, the Chief of
Staff (“Chief”) was Complainant’s reviewer.

On November 17, 2015, the Chief (no disability) referred Complainant to the CIA’s Employee
Assistance Program (EAP) based on a number of factors: Complainant reported that she had
been sexually assaulted in September 2015, she conveyed her financial difficulties to co-workers,
experienced a death in the family, had difficulty waking in the morning, maintained an erratic
work schedule, and frequently used unscheduled and annual leave for what she described as
“mental health” days. The Chief explained that the EAP referral was related to Complainant’s
performance because her frequent absences and unpredictable schedule resulted in unfinished
tasks. The EAP psychologist reported to the Chief that Complainant had no mental illness and
stopped the sessions.

3 Complainant identified her disabilities as Post-Traumatic Stress Disorder, depression, anxiety,
scoliosis, migraine headaches, fibromyalgia. For purposes of this analysis, we assume, without
so finding, that Complainant was an individual with a disability.

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Regarding claim 1.a., Complainant asserted that on August 23, 2013, management denied her
training to attend Senior Service School, and again denied training on January 27, 2014, to attend
a Senior Security Professional Seminar.

The record reflects that Senior Service School Programs are educational opportunities sponsored
by universities, military and private sector organizations, and offer Intelligence Community
professionals opportunities in leadership development, integration and collaboration,
international relations, and national security.

The record further reflects that each ODNI component office is responsible for reviewing,
selecting and prioritizing nominees as nominations are revised by the Executive Review Board
for final selection decisions. Components are responsible for finding the selected employees’
participation, including tuition, travel, housing, and other costs. Selectees are required to sign a
continued service agreement, agreeing to return to work for the ODNI for a period up to three
years.

During the relevant period, Complainant had returned from a 2-year assignment (August 13,
2011 to August 11, 2013) to the CIA to begin an assignment to the National Inside Threat Task
Force (NITTF) at NCIX (now known as “NCSC”). On August 15, 2013, Complainant sent the
Deputy Director an email expressing her interest in being considered for the FY14 Senior
Service School Programs. Specifically, Complainant expressed interest in attending the Air
Force’s Air War College at Maxwell Air Force Base, Alabama from July 2014 to May 2015.
The record reflects that applications were to be submitted no later than August 28, 2013.

The Agency acknowledged that management denied Complainant’s request to attend the Air War
College because Complainant had not demonstrated the necessary level of communication skills,
interpersonal abilities and professional experience that indicated that she was ready to benefit
from this opportunity and to contribute to the learning experience of other attendees.

The record reflects that the Deputy Director (no disability) did not recommend, support or
endorse anyone for the Senior Service School during the August 2013 nomination. Complainant
asserted that a named DIA assignee was approved to attend a senior Service School. However,
the Agency noted that the DIA assignee was nominated by DIA, not by ODNI management, and
he was not nominated during the August 2013 nomination.

Complainant asserted further that on January 16, 2014, she requested that the Deputy Director
approve her attendance at a 5-day Senior Security Professionals seminar offered to senior
security and counterintelligence offices to be held in March 2014. On or around January 27,
2014, the Deputy Director notified Complainant that he was sending the DIA assignee because
he was the NITTF Technical Director at that time.

Further, the record reflects that the Deputy Director informed Complainant that being an ODNI
employee rather than an assignee did not automatically give her a preference to attend the
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seminar. The Deputy Director felt that the DIA assignee had more direct and relevant experience
that would provide him with greater benefit at the seminar while Complainant did not possess
similar experience.

Regarding claim 1.b., Complainant alleged that on March 19, 2014, management reassigned her
from the Assessment Team to the Program and Policy Team. Complainant alleged this
reassignment resulted in her exclusion from internal meetings, not being given tasks, and not
being included as part of the team.

On March 19, 2014, the Deputy Director placed Complainant on notice that she was being
reassigned to the Program and Policy Team to work on the cost model project. She did not
object specifically to working on that team but objected that her performance objectives were not
revised after the reassignment. Complainant also objected that she was less than fully engaged
because she believed the cost model project to which she was assigned to be less than a full-time
activity.

According to the Deputy Director, he supported Complainant’s reassignment because she was
unhappy with her assignment with the Assessments Team which was reflected in her work
quality and attendance. For instance, the Deputy Director noted Complainant made errors in
reports on several agencies’ insider threat detection capabilities.

The Deputy Director also stated that because Complainant was no longer on the Assessment
Team, she did not need to receive emails relating to that team and was removed from the
Reporting email group that was used by the Assessments Team to receive information
concerning assessments. Moreover, the Co-Director explained that Complainant was not
involved in meetings or tasks regarding Assessments because that was no longer her role.
However, Complainant attended meetings and performed tasks based on her new role on the
Program and Policy team.

Regarding claim 1.c., Complainant alleged that on May 19, 2014, management required her to
use two hours of annual leave instead of allowing her to claim Maxiflex, and on June 13, 2014,
management accused her of abusing Maxiflex privileges.

During the relevant period Complainant was on a Flexible Work Schedule (FWS) which
permitted her to choose an arrival and departure time within core hours and limits set by her
organization. At the time, Complainant sought to claim 10 hours of paid time off for the May
26, 2014 Memorial Day holiday because she believed the Deputy Director was permitted to
claim Maxiflex rather than being required to take annual leave under similar conditions.

On May 27, 2014, the Deputy Director notified Complainant that she could claim only 8 hours of
paid Holiday Leave for the Memorial Day holiday because Maxiflex does not provide for a
longer work day on a holiday unless she had been scheduled to work that day. Furthermore, the
Deputy Director stated that Complainant was not required to take 2 hours of leave to make up for
time off on a holiday but to account for 80 hours of pay during the 2-week pay period.
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Regarding claim 1.d., Complainant claimed that on April 16, 2014, the Program and Policy
Team Lead screamed and yelled at her regarding a follow-up e-mail she sent to a customer.

The record reflects that the Program and Policy Team Lead (“Lead”) had requested that before
Complainant sent emails to external customers, she send him the emails first so he could review
them. On April 16, 2014, Complainant sent a short follow-up email to a Defense Threat
Reduction Agency customer without providing the email first to the Lead. According to
Complainant, she stated that when the Lead entered her office and screamed and yelled at her for
not sending the email to him first for review.

Complainant notified the Deputy Director and the Co-Director concerning the incident with the
Lead. Both the Deputy Director and Co-Director interviewed the Lead separately in which the
Lead acknowledged raising his voice with Complainant.

Regarding claim 2, Complainant asserted that on November 5, 2014, during a discussion with
management officials, she received a PER which contained conflicting and negative statements
regarding her experience, performance, and interactions.

The record reflects that in March 2016, Complainant sent an email stating that she believed the
Chief had a “personal bias or vendetta” against her. Prior to or in March 2016, the Chief
removed herself as Complainant’s reviewer based on Complainant’s allegations. The Deputy
Director of MS took the Chief’s place as Complainant’s reviewer while the new Chief (“Chief
2”) continued to serve as the “rater.” Complainant claimed that she received mid-year feedback
for the performance period at issue around March 23, 2016 and was not made aware of any
concerns aside from her work schedule.

On June 26, 2016, Complainant left PCB and around August 2, 2015, she provided a list of
accomplishments to the Chief and Deputy Director for the prior performance year. Chief 2
consulted with the Chief, his direct supervisor, about the accomplishments he believed were not
an accurate reflection of Complainant’s performance period. On September 28, 2016, Chief 2
rated Complainant on her PER, with the Deputy Director’s concurrence as “Marginal.”

Complainant challenged Chief 2’s performance rating, and engaged the Agency’s Employee
Management Relations Officer. She argued that the rating was one point lower than the previous
year, management had not communicated any performance problems, and the performance rating
was delivered approximately three months after the performance period. However, Chief 2
explained that Complainant’s submitted list of accomplishments embellished her achievements
and took credit for others’ work. Specifically, Chief 2 stated that despite Complainant’s
assertion that she managed 41 plus complex IT projects, she was a participant only, and did not
manage the projects.

Further, Chief 2 noted that Complainant took credit for giving support to a governance board but
the work was done by a contract. He also explained that Complainant refused to provide
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coordination for a team and a majority of her deliverables were not completed. After an
exchange with the Employee Management Relations Officer, Chief 2 agreed to change the
Complainant’s overall rating from “Marginal” to “Successful” and make the narrative more
positive.

The Deputy Director acknowledged friction between the Chief and Complainant during the
relevant period and “as such, we thought it prudent to mitigate that with a change in reviewing
official.” The Deputy Director further stated that he assumed the reviewing official duties for the
period of March 2016 through June 2016, and that he relied on Chief 2’s narrative as the basis
for my rating. Lacking “first hand exposure, reading the narratives (employee and Chief 2) and
evidence to the contrary, I assessed the performance as marginal.”

Complainant asserted that for the December 16, 2014–September 30, 2015 rating period, the
Deputy Director gave her a rating of “Successful” but rated her performance as “Marginal” for
the October 1, 2015–June 24, 2016 rating period. The Deputy Director stated “as they were
different jobs, and different rating periods, one rating is not relevant to the other. An employee
is rated on [his or her] performance and objectives in that rating period.”

In sum, the evidence of record simply does not establish that the incidents either occurred as
alleged by Complainant or that her race, sex, color and/or disability played any role whatsoever
in the events at issue. Complainant’s hostile work environment claim is precluded based on our
findings that Complainant failed to establish that any of the actions taken by the Agency were
motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (September 21, 2000).

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
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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

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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 13, 2019
Date