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

Equal Employment Opportunity Commission

Mar 15, 2022

Appeal No. 2020004559 (E.E.O.C. Mar. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica V.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2020004559 Hearing No. 570-2017-00701X Agency No. DIA-2012-00049 DECISION 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 July 15, 2020, final decision 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. At the time of events giving rise to this complaint, Complainant worked as an Intelligence Officer for the Agency’s East Asia Branch, Human Targeting Division in Washington, D.C. Complainant alleged that the Agency subjected her to discrimination and harassment on the bases of race (Asian) and national origin (“misperceived as China”), and in reprisal for prior protected EEO activity, when: 1. on January 30, 2013, Complainant was placed on administrative leave; 2. on September 11, 2014, Complainant received a Notice of Proposed Suspension; 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. 2020004559 2 3. on March 10, 2014, Complainant received a Notice of Proposed Removal; and 4. on October 15, 2014, Complainant was removed from her federal position. Complainant initially filed a class action complaint before the Commission, but she subsequently withdrew her class complaint on January 27, 2016. The complaint was remanded to the Agency for the processing of Complainant’s individual complaint. On June 2, 2016, the Agency accepted the above claims for investigation, but it dismissed other claims of discrimination for untimely counselor contact or as collateral attacks regarding actions by the Agency’s Security and Counterintelligence Office. 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. Complainant timely requested a hearing, but subsequently withdrew her request on April 6, 2020. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed a prima facie case of discrimination and determined that management officials articulated legitimate, nondiscriminatory reasons for the disciplinary actions. Regarding claim 1, Complainant was placed on administrative leave following the results of an investigation into multiple allegations that Complainant engaged in suspicious behavior. For example, the Agency’s investigator determined that Complainant participated in a beauty pageant as “Miss China,” and Complainant later lied to the investigator about her participation and representation of China. Regarding claim 2, the Agency proposed the indefinite suspension because Complainant lost access to sensitive compartmented information, which was a condition of her employment. For claims 3 and 4, the Agency proposed, and sustained, Complainant’s removal due to her failure to satisfy a condition of her employment namely, to hold a clearance level that would allow her access to sensitive and classified information. The Agency averred that the investigation revealed that Complainant admitted to disclosing sensitive information to her live- in partner; failed to report her contacts with former classmates, who now worked for the Chinese government; and lied to investigators about her foreign bank account and participation in a beauty pageant as “Miss China.” The Agency determined that Complainant exhibited poor judgment, displayed a lack of candor and dishonesty, and showed an unwillingness to comply with Agency rules and security regulations. As such, there was cause for concern that Complainant was vulnerable to coercion, exploitation, or pressure by a foreign government. The Agency decided that Complainant failed to meet the standards for continued access to classified information. Next, the Agency determined that Complainant failed to show that the proffered reasons were an attempt to cover discriminatory or retaliatory motives. 2020004559 3 The Agency also found that Complainant did not show that the Agency’s actions would likely dissuade a reasonable person from engaging in protected EEO activity. In addition, the Agency reasoned that Complainant did not establish a hostile work environment because the complained of actions were not based on a protected category. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The instant appeal followed. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). As an initial matter, we find that Complainant’s appeal brief and supporting documents are untimely. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Here, Complainant filed her appeal on August 13, 2020, and she did not submit her appeal documents until November 11, 2020, which is well beyond her 30-day deadline. As such, we will not consider Complainant’s untimely arguments or documents. Upon careful review of the Agency’s decision and the evidence of record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. Accordingly, 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. 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. 2020004559 4 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. 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. 2020004559 5 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 15, 2022 Date