[Redacted], Adell W., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Mar 29, 2021

Appeal No. 2020002598 (E.E.O.C. Mar. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adell W.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2020002598 Hearing No. 570-2018-00836X Agency No. DIA-2017-00082 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 7, 2020 final order concerning her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Defense Intelligence Analysis Program Analyst, GS-12, in its Directorate for Analysis, Analytic Development Office (ADO) in Washington, D.C. On November 8, 2017, Complainant filed an EEO complaint, which were later amended, alleging discrimination based on her race (Black), sex (female), and disability in that: 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. 2020002598 2 1. Whether Complainant was subjected to a hostile work environment when: a. In April 2016, Complainant’s rater, her then first level supervisor (S1), requested a meeting with Complainant and the OHR (Office of Human Resources) Specialist in which she was verbally counseled regarding insubordination. b. On June 10, 2016, S1 denied Complainant’s annual leave request and instructed her to take leave without pay (LWOP). c. In November 2016, Complainant did not concur with S1’s performance evaluation assessment. d. On February 2, 2017, S1 disapproved Complainant’s leave and instructed her to enter absent without leave (AWOL) on her timesheet. e. In April 2017, S1 never addressed Complainant’s request to telework. f. In April 2017, S1 became agitated and raised her voice at Complainant when she requested advance sick leave. g. On August 14, 2017, S1 removed Complainant’s assigned duties as an Action Officer and assigned her administrative duties. h. On August 14, 2017, S1 ignored Complainant’s request to change her work schedule to Alternative Work Schedule 4 (AWS-4). i. On August 18, 2017, S1 issued Complainant a Notice of Proposed Suspension for Ten Calendar Days for: (1) Inaccurate reporting time and attendance, and (2) Failure to follow proper procedures for requesting leave. j. In September 2017, S1 counseled Complainant and shared a personal story regarding S1’s mother's depression, stating that "she was able to get out of it." Additionally, S1 advised Complainant to "pray and go to church," and offered to connect her with a friend, who is a pastor, within the Agency for guidance. k. On September 12, 2017, Complainant’s reviewer, her then second level supervisor (S2), reprimanded her and attacked her character, and when she requested to go home for the day, he refused and stated that “he saw [her] as a strong single mom of 3 who will overcome this.” l. On September 25, 2017, S2 issued Complainant a decision letter, ignoring the medical documents she submitted to him, and accused her of taking "a lot of leave and leaving [her] coworkers with the duty of picking up [her] tasks." 2020002598 3 m. On September 26, 2017, S1 and the OHR Specialist informed Complainant that she can no longer work an AWS-4 work schedule. n. On September 27, 2017, S1 demanded that Complainant email her upon Complainant’s arrival to the office and departure. o. On September 28, 2017, S1 sent Complainant an email stating the following: "You arrived 15-minutes (.25) late on [September 7] and 15-minutes late (.25) on [September 28,] 2017. You can request leave without pay or AWOL." p. On October 20, 2017, the Outsource Coordinator forwarded an email to S1 requesting assistance for a French language interpreter, yet she never informed the appropriate person (name not specified), which denied Complainant the opportunity to support the Agency during the Foreign Delegation visit. q. On October 31, 2017, S1 denied Complainant’s request for training due to manpower issues. r. On November 8, 2017, S1 harassed Complainant when she informed her, thirteen minutes before the start of a meeting with the OHR Specialist, in the OHR spaces, and refused to provide further details. s. On November 8, 2017, the OHR Specialist contacted Complainant, by phone, and threatened her by stating, "If you do not come downstairs, you will have an issue." Complainant requested the details of the meeting and informed the OHR Specialist that her Staff Director (name not specified) advised her not to go to the meeting. In response, the OHR Specialist requested the name of Complainant’s Staff Director and stated, "I will be contacting him, but you will have an issue" and hung up the phone. t. On November 8, 2017, Complainant was issued a “Proposed 14 Days Suspension" letter for: (1) Failure to email (her) supervisor when (she) arrived and departed the office; and (2) Failure to adhering to the Basic Work Schedule (AWS-0). u. On November 7, 2017, the ADO Chief issued Complainant an unfavorable Disciplinary Grievance Decision Memorandum in response to the “Notice for Proposed Suspension for Ten Calendar Days” she originally received on August 18, 2017. v. On November 10, 2017, the ADO Chief and Complainant’s then second level supervisor (SS2) denied Complainant’s requests to move to another office within the Agency and telework. w. On November 10, 2017, Complainant’s reasonable accommodation request, originally submitted on September 18, 2017, was not resolved. 2020002598 4 x. On November 13, 2017, S1 denied Complainant’s AWS-4 work schedule request. y. On February 1, 2017, S1 and the OHR Specialist informed Complainant that she could not partake in the Agency's civilian fitness program before or after work, as it is not flexible. z. On April 14, 2017, S1 sent Complainant’s medical documents to the wrong person who was the former point of contact of the Agency’s Leave Sharing Program at the time her request was sent. aa. On January 12, 2018, and January 19, 2018, while Complainant was on approved Family and Medical Leave Act (FMLA) sick leave, S1 refused to approve any of her requests for advanced sick leave. bb. On January 25, 2018, Complainant’s Supervisory Intelligence Officer, her then third level supervisor (S3), upheld S1’s adverse action to suspend Complainant for six calendar days in lieu of the proposed 14 calendar days, without pay. cc. On February 2, 2018, S1 approved Complainant’s advance sick leave request, and then sent her request to the Department of Homeland Security (DHS) instead of her Agency (Defense Intelligence Agency) resulting in back pay not being paid another pay period. dd. On March 1, 2018, the Principal Deputy Director of the Directorate for Analysis agreed to move Complainant from under S1 but denied her request to be move out of ADO and told her that she would have to apply for a job on the career marketplace. ee. On March 15, 2018, the ADO Staff Director assigned Complainant administrative duties that are not in her performance objectives after the Principal Deputy Director or the ADO Chief moved her to ADO Headquarters. ff. On April 4, 2018, the ADO Chief failed to remove Complainant’s mitigated suspension from her official personnel file. gg. On April 4, 2018, Complainant found out that Equal Employment Office 2, Reasonable Accommodation Office, denied her request for AWS-4. hh. On April 5, 2018, the Employee Management Relations (EMR) Specialist requested Complainant go back and redo her timesheet and have her current supervisor certify the amendments, an action that would result in them being made aware of her suspension. Discrete acts as individual claims of discrimination: 2020002598 5 2. On August 14, 2017, S1 removed Complainant’s assigned duties as an Action Officer and assigned her administrative duties. 3. On August 18, 2017, S1 issued Complainant a Notice of Proposed Suspension for Ten Calendar Days for: (1) Inaccurate reporting time and attendance, and (2) Failure to follow proper procedures for requesting leave. 4. In September 2017, S1 counseled Complainant and shared a personal story regarding her mother's depression, stating that "she was able to get out of it." Additionally, S1 advised Complainant to "pray and go to church," and offered to connect her with a friend, who is a pastor, within the Agency for guidance. 5. On September 12, 2017, S2 reprimanded her and attacked her character, and when she requested to go home for the day, he refused and stated that “he saw [her] as a strong single mom of three who will overcome this.” 6. On September 25, 2017, S2 issued Complainant a decision letter, ignoring the medical documents she submitted to him, and accused her of taking "a lot of leave and leaving [her] coworkers with the duty of picking up [her] tasks." 7. On September 26, 2017, S1 and the OHR Specialist informed Complainant that she can no longer work an AWS-4 work schedule. 8. On October 20, 2017, the Outsource Coordinator forwarded an email to S1 requesting assistance for a French language interpreter, yet she never informed the appropriate person (name not specified), which denied Complainant the opportunity to support the Agency during Foreign Delegation visit. 9. On October 31, 2017, S1 denied Complainant’s request for training due to manpower issues. 10. On November 7, 2017, the ADO Chief issued Complainant an unfavorable Disciplinary Grievance Decision Memorandum in response to the “Notice for Proposed Suspension for Ten Calendar Days” she originally received on August 18, 2017. 11. On November 8, 2017, Complainant was issued a “Proposed 14 Days Suspension" letter for: (1) Failure to email [her] supervisor when [she] arrived and departed the office; and (2) Failure to adhering to AWS-0. 12. On November 10, 2017, the ADO Chief and SS2 denied Complainant’s requests to move to another office within the Agency and telework. 13. On November 13, 2017, S1 denied Complainant’s AWS-4 work schedule request. 2020002598 6 14. On January 12, 2018, and January 19, 2018, while Complainant was on approved FMLA sick leave, S1 refused to approve any of her requests for advanced sick leave. 15. On January 25, 2018, S3 upheld S1’s adverse action to suspend Complainant for 6 calendar days in lieu of the proposed 14 calendar days, without pay. 16. On March 1, 2018, the Principal Deputy Director of the Directorate for Analysis agreed to move Complainant from under S1 but denied her request to be move out of ADO and told her that she would have to apply for a job on the career marketplace. 17. On March 15, 2018, the ADO Staff Director assigned Complainant administrative duties that are not in her performance objectives after the Principal Deputy Director or the ADO Chief moved her to ADO Headquarters. 18. On April 4, 2018, the ADO Chief failed to remove Complainant mitigated suspension from her official personnel file. 19. On April 4, 2018, Complainant found out that Equal Employment Office 2, Reasonable Accommodation Office, denied her request for AWS-4. Complainant does not challenge the framing of the claims. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency articulated that although Complainant was on AWS-4 schedule, she was no longer allowed to do so because she deviated from her work schedule without her supervisor’s permission. The Agency denied Complainant’s subsequent request to be returned to the AWS-4 schedule to care for her children and to shorten the commute time because she continuously failed to report and/or depart the work as scheduled without her supervisor’s permission. When Complainant requested an accommodation (a flexible work schedule and telework) for her medical disability, she was granted AWS-3 schedule and telework for her medical appointments. The AJ found that Complainant did not demonstrate that these accommodations did not effectively accommodate her disability. The AJ found that Complainant failed to show that any of the discrete actions were motivated by discrimination and with regard to her claim of harassment, Complainant failed to show that it was related to any protected basis of discrimination. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2020002598 7 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). In order 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. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2020002598 8 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020002598 9 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 March 29, 2021 Date