[Redacted], Britney L., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Aug 10, 2021

Appeal No. 2019004271 (E.E.O.C. Aug. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Britney L.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2019004271 Hearing No. 570-2017-01531X Agency No. 15-22 DECISION On June 27, 2019, 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 May 28, 2019, final order 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. BACKGROUND During the period at issue, Complainant worked as a polygraph examiner, Grade GS-12, Step 5, in the polygraph division at the Agency’s facility in or near Washington, District of Columbia. On January 13, 2016, Complainant resigned from the Agency. On August 6, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII when: 1.a. On May 20, 2015, Complainant’s immediate supervisor and rater (Team Lead) and Complainant’s second-level supervisor and reviewer (Branch Chief) issued 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 2019004271 Complainant a performance assessment report (PAR) with negative narratives that were removed from her PAR following adjudication including the following comments: Team Lead wrote that Complainant “was reminded of the need to be more attentive to the administrative details from a polygraph technical sheet and report writing standpoint (i.e. grammatical errors, spelling errors, and polygraph technical sheets not being complete);” Team Lead wrote that Complainant “was presented with equivalent travel opportunities as her peers; however, some travel limitations Complainant presented coupled with Complainant’s tenure in the branch made it difficult to expose Complainant to as many opportunities as we had hoped;” and Branch Chief wrote that “Complainant’s performance as a polygraph examiner was “commensurate with her peers conducting similar case work.” 1.b. On May 21, 2015, Team Lead and Branch Chief gave Complainant an overall “Successful” rating which was upheld on July 22, 2015, following adjudication. 2. On August 31, 2015, Complainant learned her managers had told the Agency’s promotion panel’s representative (REP) that Complainant had issues with writing even though those writing issues had been stricken from Complainant’s PAR following adjudication; and 3. On January 13, 2016, Complainant’s managers, including Team Lead and Branch Chief, caused Complainant’s constructive discharge. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on April 22, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to illegal discrimination as alleged. Claim 1.a. - Negative Narratives in PAR Complainant contested the evaluation narratives she received from Team Lead and from Branch Chief as inconsistent with descriptions of her prior performances in three PARs. Team Lead explained that those more favorable narratives had been written by other supervisors for polygraph teams with different missions. Team Lead denied the comments that Complainant had successfully rebutted were motivated by discriminatory or retaliatory animus. 3 2019004271 Team Lead stated that Complainant’s performance narrative was accurate because Complainant’s polygraph reports contained too many misspellings or grammatical errors to warrant excellent. Team lead further stated that Complainant had failed to check required boxes on some of her technical sheets. Furthermore, when another supervisor had recommended professional reading on polygraphs, Team Lead was reasonably disappointed in Complainant responding with words to the effect of “I don’t read books.” Claim 1.b. - Successful Rating Upheld in PAR Adjudication Complainant challenged the overall rating of “successful.” The adjudicator who considered Complainant’s rebuttal of the PAR upheld Complainant receiving an overall “Successful” rating as opposed to an overall “Outstanding” rating. The adjudicator observed spelling and grammar errors in Complainant’s PAR rebuttal which corroborated her supervisors’ statements about a lack of attention to detail. Nevertheless, the adjudicator decided that her supervisors had not sufficiently counseled Complainant prior to issuing the PAR, so the adjudicator directed removing the negative assessments of Complainant’s written reports. Even after the PAR narrative had been revised, the adjudicator concluded that it was appropriate to evaluate Complainant’s performance as successful because she had met her objectives. Claim 2. - Negative Comments Made to Promotion Panel Complainant received notice that a promotion panel had met but the Agency did not promote her to Grade GS-13. Complainant alleged that REP and the promotion panel had considered the comments that were stricken from her PAR or that Team Lead disparaged her writing to the promotion panel. REP acknowledged that he was aware of Team Lead’s criticism of Complainant’s writing but REP stated that it did not factor in the promotion panel’s recommendation. According to REP, the Complainant made the promotion panel’s short list among a competitive pool of recommended candidates. REP explained that although the panel had recommended Complainant for advancement, it was the Agency’s career service board that ultimately declined to promote Complainant. Claim 3. - Constructive Discharge In her resignation letter, Complainant accused Team Lead and Branch Chief of retaliating against her by colluding to undermine Complainant’s promotion prospects; however, witnesses stated that Complainant had expressed interest in law enforcement and that management had granted Complainant permission to seek employment outside of the Agency and in another state. 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. 4 2019004271 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 Based on a thorough review of this entire record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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. 5 2019004271 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 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. 6 2019004271 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 10, 2021 Date