[Redacted], Billy L, 1 Complainant,v.Christopher C. Miller, Acting Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2019000214 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billy L,1 Complainant, v. Christopher C. Miller, Acting Secretary, Department of Defense (Defense Intelligence Agency), Agency. Request No. 2021000252 Appeal No. 2019000214 Hearing Nos. 510-2017-00132X and 510-2017-00354X Agency Nos. DIA-2015-00068 and DIA-2016-00076 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Billy L. v. Dep’t of Defense, EEOC Appeal No. 2019000214 (Sept. 16, 2020). 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). During the period at issue, Complainant worked as a Geo-Political Analyst, GG-13, at the Agency’s Central Asia Division at CENTCOM in MacDill AFB, Florida. On June 1, 2015 and November 17, 2016, Complainant filed two formal EEO complaints, with multiple amendments, claiming that he was subjected to an ongoing hostile work environment 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. 2021000252 2 based on disability (epilepsy), and in reprisal for prior protected EEO activity (previous EEO complaint, DIA-2014-00029, filed on May 3, 2014). 1. Complaint DIA-2015-00068 Complainant claimed that he was subjected to discrimination and a hostile work environment based on physical and perceived mental disability (epilepsy) and in reprisal for prior protected EEO activity when: a. on October 17, 2014, the Chief (CHIEF), Employee Management Relations (EMR) Branch, Office of Human Resources (ORR), the Senior Defense Intelligence Analyst (CCJ2-J) (SDI), and the Vice J2 US Central Command (VICE), denied Complainant’s request for a non-12 (unbiased) deciding official to officiate the Office of Human Resources (ORR) grievance Complainant filed regarding his October 16, 2014 suspension; b. on November 24, 2014, SDI recused himself as the deciding official for Complainant’s OHR grievance and the VICE was appointed as the new deciding official. Complainant felt this was done to cover up OHR wrong-doing and failures of Complainant’s previous leadership; c. from December 15, 2014, the ORR Employee Management Relations Specialist (EMR), failed to respond to Complainant’s consolidated questions related to his October 16, 2014 suspension, the subsequent OHR grievance Complainant filed and OHR violations of DIA Instructions; d. between December 29, 2014 and February 24, 2015, the VICE claimed he spoke to someone from the Alternative Dispute Resolution (ADR) team, who made it clear that the April 28 through May 2, 2014 ADR session Complainant was involved in would not eliminate any pending personnel actions. However, this could (sic) conversation could not have occurred because the individual at issue, the ADR facilitator, had retired; e. in December 2014, the ADR facilitator, who had conducted the ADR session Complainant participated in from April 28 to May 2, 2014, refused to speak with Complainant, stating that this was against DIA Procedures for ADR sessions; f. on February 24, 2015, Complainant received OHR’s decision on Complainant’s grievance, via email from EMR, and signed by the VICE. The decision was one hundred and one days late and upheld Complainant’s 7-day suspension; g. between February 12 and March 19, 2014, the Director OHR, (DIRECTOR) and the Deputy General Counsel (DGC), Office of General Counsel, refused to answer dozens of questions Complainant submitted as authorized by DIA Instruction 1426.002. They both claimed that all of Complainant’s questions had been answered, which was untrue; 2021000252 3 h. on March 19, 2015, the EMR failed to respond to Complainant’s consolidated questions related to Complainant’s October 16, 2014, the suspension, the subsequent OHR grievance Complainant filed, and OHR violations of DIA Instructions; i. from February 2013 to October 13, 2014, management, to include the SDI, the SIO, the (SI2), the former United States Central Command (U.S. CENTCOM) DIA Senior Representative (DSR), the Chief, Joint Intelligence Center Central (JICCENT) Iran Division, the JIOC Commander, and the VICE, failed to act on Complainant’s complaints of harassment and denied the fact that Complainant had a medical disability to support retaliation for making EEO complaints of medical discrimination; j. on July 13, 2015, Complainant’s former supervisor, (S1) Supervisory Intelligence Officer, harassed Complainant at the bus stop behind USCENTCOM Headquarters; k. on July 15, 2015, Complainant reported to the Joint Intelligence Operations Center (JIOC) commanders and the DIA Director’s Executive Staff that Complainant continued to be harassed by S1, and they did not act to address it in accordance with the USCENTCOM JIOC Commander’s EEO/Diversity Policy Statement; l. on October 27, 2015, Complainant became aware that from November 2014 to August 2015, S1, and the Supervisory Intelligence Officer, continued to document information against Complainant even though they are no longer Complainant’s supervisors; m. on October 14, 2105, the DIA Assistant General Counsel, breached Complainant’s confidentiality when he revealed Complainant’s complete name to a third party while undergoing the discovery process with the third party. Complainant insisted the following information be included for clarification: This unauthorized disclosure is yet another in a long series of errors committed by DIA personnel regarding actions pertaining to Complainant’s EEO complaints of medical discrimination, harassment, and subsequent retaliation by S1 and others; n. based upon events beginning in September 2012, when Complainant returned to duty after hospitalization with epilepsy. An example of the errors included, an incident on March 19, 2015 when the DGC insisted all aspects of Complainant’s suspension and grievance were properly followed. The fact they have not, is extensively documented throughout both EEO complaints ongoing since May 2014. This breach of confidentiality has added to the stress and humiliation Complainant has suffered throughout this now over three-year ordeal. These actions represent another aspect of continued support for S1’s abusive management style, other USCENTCOM personnel condoning it, and subsequently retaliated against Complainant for his EEO complaint against them. This is compounded by other USCENTOM and DIA personnel involved in Complainant’s EEO complaint continuing to deny any wrongdoing; 2021000252 4 o. on or about October 27, 2015, Complainant became aware via the EEO discovery process that on April 16, 2014, after her interview with the investigator regarding Complainant’s previous EEO complaint, Agency Case No. DIA-2014-00029, the Jt. Chief Iran Division stayed after duty hours to write an email to DIA Office of Human Resources. This email contained a list of alleged offenses Complainant had committed; p. on September 15, 2015, Complainant became aware that on or about May 30, 2014, S1 appointed the SIO, as the deciding official for the proposed suspension levied against Complainant that day by S1. This appointment was a conflict of interest and highlights how the actions of Complainant’s former supervisory chain and other members of USCENTCOM J2 from early 2013 through May 30, 2014, were not in accordance with EEOC Management Directive 110, specifically Chapter 1, Section IV - Avoiding Conflicts of Interest, and Chapter 3 - ADR for EEO Matters. Specifically, the SIO was named the deciding official a few weeks after he was interviewed about Complainant’s EEO complainant against him; q. on December 23, 2015, the DIA Office of General Counsel informed Complainant via email that his “recent letter addressed to the Director, DIA was referred to the Office of General Counsel for reply, as it discusses a matter in litigation before the U.S. Equal Opportunity Commission.” The fact this matter is in litigation before the EEOC is irrelevant, as per EEOC MD-110 “The EEOC encourages the resolution of complaints at all times in the complaint process;” r. from January 8, 2016 to February 5, 2016, the Commanding Officer, Joint Intelligence Center, U.S. Central Command (USCENTCOM), failed to follow his own EEO policy in response to Complainant’s request for him to act on his EEO policy by acting to address Complainant’s EEO complaint. He replied to Complainant in his EEO policy by acting to address Complainant’s EEO complaint. He replied to Complainant in a February 1, 2016 email: “I discussed the matter with the DIA EEO Representative at US CENTCOM and she agrees with my assessment,” and “the matter has been taken out of my hands- should you have information to the contrary, please do not hesitate to notify me. I am always available to assist you.” He failed to act on this statement after Complainant informed him Complainant had information to the contrary, as follows: Per EEOC MD- 110 states, “The EEOC encourages the resolution of complaints at all times in the complaint process;” s. on February 8, 2016, the DIA EEO representative at USCENTCOM Headquarters, would not provide a reference supporting what she advised the CAPT, causing him to conclude acting on Complainant’s EEO complaint in accordance with his Command Policy is “out of his hands.” She stated, among other things, “Agency officials and employees involved in an EEO complaint are all considered participants in the EEO complaint process,” thus their discussion was “private and confidential.” 2021000252 5 t. as the CAPT is not an Agency employee, this justification does not apply to him. Further, according to EEOC-MD-110 “The EEOC encourages the resolution of complaints at all times in the complaint process.” Therefore, her guidance was incorrect, and CAPT Brookes does have the authority to act on Complainant’s case; u. on or about September 30, 2014, S1 retaliated against Complainant for making an EEO of Performance Cycle (EPCA) dated 09/30/2014. Complainant’s comments follow each statement in the detail portion of this amendment, explaining each false and inaccurate statement. These false statements had an adverse impact on Complainant’s entire future career, as any advanced schooling or advancement opportunities require submission of an individual’s last three evaluations; v. from March 25-31, 2016 the Lieutenant General, Director, DIA, did not acknowledge Complainant’s registered mail and email appeals to him, on both JWIC (i.e. Top Secret) and SIPRENT (i.e. Secret Computer Networks), of his Staff Offices’ and USCENTCOM personnel violating DIA and USCENTOM EEO policies. Complainant is certain his inaction was either due to OGC advising him that nothing could or should be done, or the Director simply ignored his own EEO policy. On May 9, 2016, Complainant was informed by the DIA employee, that the DIA Director received his emails; z. in March 2016, Complainant learned that on or after April 11, 2014, several managers approached the DIA Senior Representative (SR) to US Central Command and tried to have Complainant separated (i.e. fired) from DIA without valid cause. They tried to use Complainant’s disability as grounds to have him separated. This is yet another in a series of actions taken to retaliate against Complainant for making an EEO complaint against these individuals in 2014. Further, these retaliatory actions were undertaken to cover up CENTCOM officials’ failure to act on Complainant’s numerous-written complaints of now accused felon S1’s medical discrimination, harassment, and retaliation, violating both DIA and CENTCOM policy; aa. on or about May 3, 2016, SF02 embellished a 3-second encounter Complainant had with him when Complainant gave him a personal letter with information about S1’s recent arrest for sexual battery - custodial authority with victim 12-17, which resulted in a retaliatory summons to the DIA Office of Security for an interview. Complainant anticipated SF2 would take retaliatory action against him, so he documented the encounter, as did an eyewitness with impeccable character and credentials. A principal justification the manager used to result in this interview was “alleged medical issues [Complainant] reported in 2012 and may still be “receiving treatment and prescribed medication as a result;” bb. on May 4, 2016, and May 10, 2016, respectively, the DIA Senior Representative to USCENTCOM, told Complainant two different reasons why he ordered Complainant to report to the DIA Office of Security (DIA OOS) on Monday, May 9, 2016. Neither reason was true or accurate, and he almost certainly acted upon SF2’s false account of 2021000252 6 what transpired between he and Complainant on May 3, 2016. Not only did he not tell Complainant the truth on either May 4 or May 10, he never asked Complainant for his account of the May 3 interaction with SF2. The Chief’s actions taken upon SF2 and/or someone else’s recommendation is yet another series of actions undertaken to cover up CENTECOM official’s failure to act on Complainant’s numerous written complaints of S1’s medical discrimination, harassment, and retaliation, violating both DIA and CENTCOM policy; cc. on February 10, 2016, Complainant became aware that on Monday, April 14, 2014, Jt. Chief Iran Division was given the results of a Security Inquiry she initiated against Complainant - Response Memo to Preliminary Inquiry into Possible Security Incident #2014-25 (RM) but never informed him of the results. The results indicated Complainant was absolved of any wrongdoing. Has she shown Complainant the report, Complainant would have another of many examples of inequitable treatment by her, S1, and others, for his numerous complaints of medical discrimination, harassment, and what eventually led to retaliation. 2. on February 24, 2015, Complainant received ORR’s decision on his grievance, via email from the EMR, and signed by the VICE. The decision was one hundred and one days late and upheld his 7-day suspension. In complaint DIA-2016-0076, Complainant claimed that the Agency discriminated against him and subjected him to a hostile work environment based on disability (epilepsy) and in reprisal for prior protected EEO activity when: 1(b). on or about May 3, 2016, the Captain betrayed Complainant’s trust by forwarding an email Complainant sent him in confidence to the DIA Senior Representative to USCENTCOM. This resulted in ordering Complainant to report to the DIA Office of Security regarding “two packets” he allegedly sent to DIA Headquarters “addressing security concerns.: 1(c). on or about November 7, 2016, the Captain betrayed his trust when he forwarded an email that the EEO Counselor sent him on November 7, 2016, to the DIA Senior Representative to USCENTCOM, despite his request not to do so; 1(d). on or about November 8, 2016, the Captain claimed to have no authority to conduct ADR to resolve his EEO complaints and continuously claimed to have no authority over civilians, despite the fact that his EEO policy clearly stated that it covered all JICCENT employees and all personnel which includes civilians; 1(f). on April 26, 2017, the Reasonable Accommodations (RA) Office had yet to process Complainant’s March 15, 2017, request for an accommodation within the required 30- business day time frame, despite it having his supervisor’s recommendation, and meeting all the requirements of the two applicable DIA Policies (DIAI 1020.002, RA 2021000252 7 for Qualified Persons with Disabilities, and DIAD 5240.100, Insider Threat Program), and the RA Office did not provide information indicating that his request had been processed despite Complainant’s five requests for information; and, 2. on May 9, 2017, Complainant was issued a denial of his request for a reasonable accommodation by the Chief, Diversity Management Division. After an investigation of the accepted claims,2 Complainant requested a hearing before an EEOC Administrative Judge (AJ) for both complaints. Subsequently, the complaints were consolidated even though each complaint was assigned a separate EEOC hearing number. On June 28, 2018, the AJ dismissed Complainant’s request for a hearing and remanded the complaints to the Agency for further processing. On September 6, 2018, the Agency issued a consolidated final decision finding no discrimination. Complainant appealed. The previous decision acknowledged that there was a thorough review of the record including Complainant’s contentions on appeal including those that were not specifically addressed in the decision. For preliminary matters, the decision determined that the AJ’s dismissal of Complainant’s hearing request was proper. Because Complainant did not comply with the AJ’s instructions, it was well within the AJ’s discretion to dismiss Complainant’s hearing request. The decision also determined that despite Complainant’s request for his complaints to be adjudicated separately, consolidation of the formal complaints was appropriate, to prevent fragmentation of his claims. The decision also dismissed claims 1a, 1b, 1c, 1d, 1e, 1f, 1g, 1h, 1n, 1o, 1p, 1q, 1r, 1t, 1v, and 2 in complaint DIA-2015-00068 and claims 1d and 1f in complaint DIA-2016-0076 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The decision found that these complaints constituted a collateral attack on several processes outside of the Commission’s jurisdiction. The decision noted that Complainant was challenging the outcome of a grievance, suspension, complaints about Agency procedures and Agency responses to his questions, and complaints about the EEO process, and therefore, Complainant should have raised these challenges within those separate processes itself. Regarding the merits, the decision found that the Agency articulated legitimate, non- discriminatory reasons for its actions. The record reflected that management responded to Complainant’s reports of disagreement and verbal arguments with his co-workers and management counseled all co-workers on the issue, initiated an ADR session to address Complainant’s concerns, and interviewed a witness present at a public incident Complainant reported to determine what happened. The record also indicated that Complainant did not respond to S1’s questions about how he was doing, while standing at the bus stop, and S1 documented the matter. Other management officials documented similar encounters with Complainant because Complainant exhibited awkward behavior and avoided eye contact. 2 Claims 1t, 1u, 1x, and 1y were not accepted by the Agency for investigation. 2021000252 8 Management further acknowledged that it inadvertently sent a set of interrogatories to another employee that included Complainant’s name. However, there was no other identifying information about Complainant and the Agency took immediate action to resolve the issue. Management also acknowledged that management officials met to discuss Complainant’s performance and insubordination to determine how to improve Complainant’s performance and did not meet to terminate Complainant’s employment. Regarding statements on Complainant’s performance evaluation, management explained that the statements addressed specific areas in Complainant’s performance objectives. Management also explained that Complainant was ordered to the Office of Security after Complainant provided a letter to another manger that encouraged S1 to commit suicide or bring harm to himself. Regarding Complainant’s reasonable accommodation request, the decision determined that management had not violated the Rehabilitation Act. Here, Complainant requested that his polygraph test be waived because of work-induced stressed. However, management explained that Complainant’s request was denied because it was premature. Complainant had just taken and passed a polygraph test and his next test was due in four years. Management further acknowledged that Complainant’s medical condition, epilepsy, would not be an issue and Complainant only needed to provide notice before the test so that accommodations could be made. As for Complainant’s hostile work environment claims, the decision determined that the incidents were not sufficiently or pervasive to establish a legally hostile work environment and Complainant failed to demonstrate that the Agency’s actions were based on discriminatory or retaliatory animus. In the instant request for reconsideration, Complainant submits a statement expressing disagreement with the appellate decision, many matters of which were previously raised on appeal. However, we emphasize that a request for reconsideration is not a second appeal to the Commission. 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). 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. 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. 2019000214 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021000252 9 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 14, 2021 Date