[Redacted], Isabelle G., 1 Complainant,v.General Paul M. Nakasone, Director, National Security Agency, Agency.

Equal Employment Opportunity Commission

Jan 22, 2020

Appeal No. 2019004082 (E.E.O.C. Jan. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isabelle G.,1 Complainant, v. General Paul M. Nakasone, Director, National Security Agency, Agency. Appeal No. 2019004082 Agency No. 19-0005 DECISION On June 18, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 17, 2019, dismissing her complaint of unlawful 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a General Attorney, GG-0905-15 at Fort George G. Meade, Legal, Policy, and Oversight, in Maryland. Complainant filed an equal employment opportunity (EEO) complaint dated November 16, 2018, alleging that the Agency subjected her to discrimination and harassment based on her race (Part Indian), national origin (Myanmar - father's side), sex (female/parental status), religion (perceived Muslim), color (Tan), disability, age (44), and reprisal for prior protected EEO activity when: 1. In lieu of being terminated, she resigned in January 2015 (constructive discharge). 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. 2019004082 2 2. People at the Agency leaked false and very personal security information, as well as false information that she lied on her clearance forms or was not fully carrying out her duties or engaged in work misconduct, as evidenced by: • Prior to her termination when she was waiting in her daughter’s school office, a school employee entered, pointed to the fire alarm and remarked “high five”, likely referencing clearance requirements for prior drug use. • When she rode the subway “government actors” affiliated with law enforcement or other agencies daily approached her and made licking sounds in her ear suggestive of oral sex, and this was eventually accompanied by use of imaging equipment pointed to her groin and buttocks using a red light. She later realized they were acting on gossip about another individual that they attributed to her based on her protected groups. • When she tried to find other employment in the intelligence and law enforcement communities, she was confronted with a never-ending stream of derogatory assertions and innuendos. Complainant contended that management informed her that her constructive discharge was based on her poor performance. The Agency dismissed issue 1 because Complainant did not timely initiate EEO counseling. It reasoned that Complainant initiated EEO counseling on July 10, 2018, beyond the 45 day time limit, and she formed a reasonable suspicion of discrimination by the time she resigned. The Agency dismissed issue 2 for failure to state a claim. It reasoned that Complainant simply made a conclusory assertion that the Agency was involved, and the allegation was not sufficiently specific. ANALYSIS AND FINDINGS An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The Commission has adopted the reasonable suspicion standard to determine when the 45-day limitation period is triggered. Howard v. Navy, EEOC Appeal No. 01965648 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. 2019004082 3 Complainant contends that she formed a reasonable suspicion of discrimination regarding issue 1 on October 15, 2018, when the EEO counselor gave Complainant a summary of the information she had gathered and Complainant realized that management engaged in a coverup when it attributed her constructive discharge to her performance, when her attendance actually played the significant role. Regardless of what the EEO counselor relayed to Complainant, we are not persuaded that she formed her reasonable suspicion of discrimination on October 15, 2018, because she initiated EEO counseling several months before alleging discrimination on issue 1. In her EEO intake form completed in August 2018, Complainant wrote that while the Agency based her termination on her performance review, this was a pretext because it was unsubstantiated, included false accusations, and the Agency did not follow procedures regarding it. In her EEO complaint, Complainant wrote that during the year prior to her constructive discharge her supervisors singled her out by making unwarranted references and assessments about her performance based on a pattern of unverified incorrect assumptions that were false and impervious to her responses of what really happened. In her complaint, Complainant gave specific examples of these unwarranted references and assessments, and wrote that she was held to stricter standards than other attorneys in her group. Given all this, we find that Complainant formed a reasonable suspicion of discrimination by the time she was constructively discharged. The Agency dismissed issue 2 for failure to state a claim. Given the unique facts of this case, we agree. The FAD is AFFIRMED. 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. 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. 2019004082 4 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 court has the sole discretion to grant or deny these types of requests. 2019004082 5 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 22, 2020 Date