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

Equal Employment Opportunity Commission

Feb 10, 2021

Appeal No. 2019005502 (E.E.O.C. Feb. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lauren B.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2019005502 Hearing No. 570-2018-00389X Agency No. DIA-2017-00048 DECISION On August 16, 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 July 8, 2019 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a National Wellness Collection Officer for South Asia, GG-0132-15, (on a Joint Duty Assignment to the Office of the Director of National Intelligence) at the Agency’s United States Cyber Command J2 (CYBERCOM) in McLean, Virginia. On June 11, 2017, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her in reprisal for her prior protected EEO activity when: 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. 2019005502 2 1. On March 30, 2017, the Senior Human Resources Representative notified Complainant that Agency vacancy announcement CIO-109243-03-SEMO, for the Chief of Cyber & Enterprise Operations position, EP-0340-00, was open only to external candidates; 2. On April 4, 2017, Complainant’s home office Supervisor, Deputy Director of Intelligence, J2 United States Cyber Command, denied Complainant’s request for her to advocate for her to have an opportunity to compete for the Chief of Cyber & Enterprise Operations vacancy because Complainant was obligated in her current Joint Duty Assignment to the Office of the Director of National Intelligence; 3. Between April 7, 2017 and April 12, 2017, the Chief, Senior Executive Management Office (SEMO), Office of Human Resources, advised Complainant that she was determined “not ready” for Agency executive level competition or assignment consideration by virtue of the results of a new annual promotion panel process, Agency Talent Management Process, which was implemented in August 2016; 4. On April 12, 2017, Complainant was informed by the Chief (SEMO) that the Agency Deputy Director directed implementation and interpretation of the Agency Talent Management Program as a new and more rigorous standard which resulted in Complainant’s non-eligibility to compete for the Chief of Cyber & Enterprise Operations vacancy, and improperly excluded her from consideration for the position; and 5. As of April 17, 2017, Complainant had not received feedback from the Chief (SEMO) regarding her March 31, 2017, April 7, 2017, and April 12, 2017, requests for him to elevate her concerns to the Director concerning being treated disparately with respect to the vacancy for the Chief of Cyber & Enterprise Operations position. 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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). With regard to claim (1), Complainant stated that she received an email from the Senior Human Resources Representative on March 30, 2017, informing her that she was ineligible to apply for the Chief of Cyber & Enterprise Operations position. Complainant believed her exclusion was directed by the Agency’s Deputy Director. Complainant claimed that in 2010, during a debriefing from a senior executive position she had applied and interviewed for, the Deputy Director told her there would be no senior executive opportunities for her at the Agency. Complainant stated that her prior billet was not in her career field and as a result she was not part of the candidate pool to be considered. Complainant explained that her career field was in Analysis but in her current position, she was not part of the candidate pool that developed employees by placing them through a professional management plan and progressive career development assignments consistent with their skills. 2019005502 3 Complainant stated that she knew of other employees with similar career alignment issues. Complainant believed the timing of the vacancy announcement was done so that she was ineligible to apply. The Chief stated that the circumstances of the position at issue were unusual because the Agency’s policy under the new Talent Management System was to develop internal officers for promotion to the senior ranks, as opposed to seeking external recruits. According to the Chief, the Agency recruited externally when it lacked the talent internally. The Chief stated that the Chief Information Officer made the decision to externally advertise the vacancy at issue. The Chief affirmed that Agency employees were ineligible to apply for external vacancies and this matter had nothing to do with reprisal. Complainant’s Supervisor stated that she thought Complainant was qualified for the position at issue and she endorsed Complainant for the promotion. The Supervisor stated that the panel did not agree. The Supervisor stated that she was aware of other employees who had expressed concerns about not being permitted to apply for the position at issue because they were not in the pool. According to the Supervisor, she had 500 employees, and many were not happy about the new Talent Management Process. The Supervisor maintained that she and Complainant had been working to get Complainant to a point at which she would be eligible for promotion and she had hoped her Joint Duty Assignment, which was at the senior executive level, would prepare her for promotion. The Senior Human Resources Representative stated that the vacancy was originally posted as “All Open Sources,” but she had to rescind it and repost it a couple weeks later for external candidates only. She stated that none of the internal candidates who could have applied for the position at issue fit the category of the position. She stated that the Director thus approved the position to be filled externally. According to her, the new internal process for promotion from a GG-15 entailed sending in a package and then going through the panels, who determined whether the candidate was promotable. She stated that only 15 employees were deemed promotable under the process. The Senior Human Resources Representative explained that for each GG-15 employee, there is an annual promotion assessment form, based on certain promotion criteria, and employees must submit executive core qualifications, Intelligence Community (IC) senior officer core qualifications and technical qualifications. According to the Senior Human Resources Representative, there were five executive core qualifications and employees had to submit input for each one to show impact and how the criteria were met. She explained that IC senior officer core qualifications have three criteria and the technical qualifications were based on career field. The Senior Human Resources Representative stated that the packages are submitted to the employee’s rater and reviewer for comments and recommendation if ready for promotion. She asserted that the package then goes to a career field panel and if the panel assigns the employee a rating of 80 percent or higher, the package moves for review to the next level, the Agency panel. She stated that employees must also receive a rating of 80 percent or higher from the Agency panel and then the package proceeds to the Director for review. 2019005502 4 According to the Senior Human Resources Representative, Complainant did not make it through the Agency panel, which was chaired by the Deputy Director, and included other senior executives. With respect to claim (2), Complainant requested that her Supervisor advocate for her to compete for the position at issue. According to Complainant, her Supervisor stated she would not advocate for her for the position because she was on a Joint Duty Assignment. Complainant acknowledged that her Supervisor had advocated for her to receive the Joint Duty Assignment and she was only five months into that assignment. Complainant’s Supervisor maintained that she supported Complainant on this matter. The Supervisor stated that she spoke to SEMO and Human Resources concerning the issue. The Supervisor acknowledged that she did not advocate for directly requiring them to allow Complainant to apply for the position as she wanted to understand the metric applied in this situation. According to the Supervisor, Complainant met the criteria outlined in the Talent Management Process to be considered for promotion. The Supervisor asserted that Complainant had a good chance of receiving the promotion but was deemed ineligible for promotion by the panel. The Supervisor stated that others were in the same situation, and she did not believe Complainant was singled out or that her prior EEO activity was a factor in this matter. Regarding claim (3), Complainant stated that subsequent to her nonselection she received feedback inconsistent with her experience. Complainant stated that she was informed she needed more external assignments, experience in combatant command, senior service school and a mentor. According to Complainant, she had completed all actions noted in the feedback, and they were well-documented in her application package. With regard to claim (4), Complainant stated that she wanted her concerns about being unable to compete for senior executive positions under the new promotion process to be elevated to the Director. Complainant stated that the Chief told her that the Director was aware of her concerns, but she did not have a right to get an answer from the Director. Complainant maintained that this response was not consistent with the Director’s policies on open door communication. The Chief asserted that the new Talent Management System was implemented at the direction and under the authority of the Director. The Chief stated that Complainant’s eligibility was determined by the Talent Management System, and not the Deputy Director. According to the Chief, there is no appeal process for the Talent Management System. As for claim (5), Complainant stated that she believed the Director was not aware of the details of this matter; that it was misrepresented; and he had not received full information. Complainant claimed that the Chief, Deputy Director, or both, have blocked communication with the Director. According to Complainant, she submitted three specific requests for her concerns to be elevated to the Director, and the last request had specific questions seeking a response from the Director. The Chief stated that the Deputy Director told him that she informed the Director of the issue and was instructed to proceed according to the Talent Management System process. 2019005502 5 In its decision, the Agency assumed arguendo that Complainant established a prima facie case of reprisal and found that management had articulated legitimate, non-retaliatory reasons for its actions. According to management, Complainant could not apply for the position at issue because it was only available for external applicants after it had been determined that internal candidates eligible for promotion did not have the required skills to fill the position. Complainant requested that her Supervisor advocate for her to compete for the position at issue. According to Complainant, her Supervisor stated she would not advocate for her for the position because she was on a Joint Duty Assignment. Agency management explained that after the promotion assessment form went to Complainant’s rater and review for comment and recommendation for promotion, her promotion package was evaluated against Agency criteria by a two-tier panel. The Agency stated that the panel determined Complainant did not meet 80 percent of the criteria to be considered eligible for promotion to the senior ranks. Agency management reiterated that Complainant was determined under the Talent Management Process to be not ready for promotion and she also was ineligible to apply for the vacancy because it was open only to external applicants. Agency management stated that the Deputy Director, after communicating with the Director, indicated they were to proceed pursuant to the Talent Management Process, and a team was assembled to answer any questions. The Agency determined that Complainant failed to establish that the articulated reasons were a pretext for reprisal. As a result, the Agency found that Complainant was not subjected to reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that in 2010 the Deputy Director stated that she would have no senior executive promotion opportunities at the Agency as part of her debrief following her interview for a senior executive position and failed to offer any guidance, training, or advocacy to assist her in her professional goals. According to Complainant, her professionalism, collaboration skills and interpersonal effectiveness in the most challenging work environments were consistently lauded as strengths and explicitly and regularly cited as demonstrating readiness for more senior assignments and promotion to the senior executive rank. Complainant points out that in 2012, she was panel screened and interviewed for the same position, and that since then she had expanded her skills in that discipline. Complainant maintains that the intent of Agency Senior Managers was to retaliate by branding her as a difficult employee and non-team player because she raised legitimate concerns and requested assistance beginning in 2006 to address unfair treatment and the Agency’s persistent sex-based discrimination in assignment opportunities and career progression for female employees, and her in particular. Complainant requests that the Commission reverse the final decision. 2019005502 6 ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume arguendo that Complainant established a prima facie case of reprisal with respect to the matters at issue. We further find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in each claim. As for claim (1), the Agency stated that the vacancy announcement for the Chief of Cyber & Enterprise Operations position was only open to external candidates because there were no internal eligible candidates that met the position criteria. The Senior Human Resources Representative stated that the Director therefore approved the position to be filled externally. In terms of claim (2), Complainant’s Supervisor asserted that she supported Complainant’s effort to be considered for the Chief of Cyber & Enterprise Operations position. The Supervisor stated that she spoke to SEMO and Human Resources concerning the issue. With regard to claim (3), Agency management explained that after the promotion assessment form went to Complainant’s rater and review for comment and recommendation for promotion, her promotion package was evaluated against Agency criteria by a two-tier panel. The Agency stated that the panel determined Complainant did not meet 80 percent of the criteria to be considered eligible for promotion to the senior ranks. With respect to claim (4), the Chief explained that in May 2016, the Agency Director approved a new promotion system under the Talent Management System, whereby the promotion criteria and process formally changed for every grade, inclusive of senior rank. The Chief stated that an employee could no longer apply and be evaluated on skill competencies, experience and preparation for a position. According to the Chief, under the new process, a Field Manager panel and an Agency-level panel reviewed candidates before the Director made the final selection on the senior rank eligible to compete for promotion. The Chief asserted that Complainant submitted an application package and was not deemed eligible for promotion. In terms of claim (5), the Chief stated that the Deputy Director told him that she informed the Director of the issue and was instructed to proceed according to the Talent Management System process. 2019005502 7 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. Complainant attempts to establish pretext by arguing that her credentials warranted consideration for the position at issue. The record reflects that the Agency decided to consider only external applicants for the position after it determined that there were no internal eligible candidates that met the position’s criteria. We find that Complainant has not established that the Agency’s explanation for only considering external candidates for the Chief of Cyber & Enterprise Operations position was pretext intended to hide retaliatory motivation. Further, Complainant claims that her Supervisor stated she would not advocate for her for the position at issue because she was on a Joint Duty Assignment. Complainant acknowledged that she was only five months into that assignment. Likewise, Complainant has not refuted her Supervisor’s assertion that she inquired on Complainant’s behalf to SEMO and Human Resources concerning the position. Finally, the Chief stated that the Deputy Director told him that she informed the Director of the matter concerning Complainant, and she reported that the Director indicated they were to proceed pursuant to the Talent Management Process, with a team assembled to answer any questions. The Commission finds no persuasive evidence that Complainant's prior protected EEO activity was a factor in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to reprisal as alleged. CONCLUSION This Agency’s determination that no reprisal occurred is AFFIRMED. 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. 2019005502 8 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2019005502 9 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 February 10, 2021 Date