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

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2019005776 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michael D.,1 Complainant, v. Christopher C. Miller, Acting Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2019005776 Hearing No. 570-2017-00227X Agency No. DIA-2015-00076 DECISION On August 15, 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 17, 2019 final order, concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Intelligence Officer, GG-0132-13, at the Agency’s National Geospatial Intelligence Agency facility in Springfield, Virginia. On September 10, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Anxiety/PTSD) and reprisal for 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. 2019005776 2 1. Since July of 2014 and continuing, Complainant was subjected to a hostile work environment because of his disability in the form of nit-picking, micro- management, denial of a bonus award, and name-calling, and the issuance of a Letter of Caution. 2. Since July 7, 2015, after he filed an EEO complaint, he was subjected to retaliation. Specifically, on July 17, 2015, he received a Letter of Reprimand (LOR) for “unprofessional, discriminatory language toward his chain of command” and, on July 20, 2015, management placed him on a Performance Improvement Plan (PIP) concerning the performance issues noted in a June 25, 2015 Letter of Caution (LOC). The pertinent record reveals the following facts: At all times relevant to this complaint (July 2014 - July 2015), Complainant worked for the Directorate of Operations, Collections Management. He initially contacted the DIA EEO on July 7, 2015. He had one prior EEO complaint, filed four years before. He named five management officials and one non-management employee as responsible for the alleged discrimination against him. Those management officials were identified as: 1) the Deputy Division Chief for the Enterprise Division, GG-15, who was the Branch Chief for the Department of Requirements at the time of the complaint (his supervisor) (“S1”); 2) the Major, Liaison, National Geospatial Intelligence Agency to the Undersecretary of Defense for Intelligence (“S2”); 3) the Deputy Division Chief, Directorate of Operations, Office of Collection Management and Targeting (CMT) at the time of the complaint (“S3”), and the Major, Deputy Branch Chief Enterprise Division, and Regional Departmental Requirements Officer at the time of the complaint (“S4”). S1 started as Complainant’s supervisor in April 2014. S1 stated that Complainant told her he had Post Traumatic Stress Disorder (PTSD), but never formally documented it. Report of Investigation (ROI), 1007. On another occasion, Complainant told S1 he had anxiety, not PTSD. S1 stated she has no formal record of Complainant having a disability. ROI, 1156. S4 first became aware of Complainant’s disability, when he was emailed unsolicited medical information by the Complainant ROI, 1185-1187. The record shows the emails, listing medications, were sent in January 2015. On February 12, 2015, S4 stated Complainant not only declined the opportunity to request a reasonable accommodation, but he also denied he had PTSD. ROI, 1166. He said that when asked if Complainant had a clinical diagnosis of PTSD from a competent medical authority, Complainant replied “No.” ROI, 1205. Towards the end of May or the beginning of June, Complainant called S1 a racially charged word (“managerial Klansman”). ROI, 1005-1006. 2019005776 3 Complainant’s schedule was 0800 to 1630. ROI, 1201. S1 started to notice Complainant’s time and attendance issues in June of 2014. ROI, 1065. Although Complainant applied for three different Alternative Work Schedules (AWS), he never changed his work hours - despite being encouraged to do so by management. Complainant submitted a leave request for the Christmas holidays, but did not charge leave on his time card. The Christmas holiday time charge error was found and corrected with no negative impact to Complainant. ROI, 1100-101. On December 31, 2014, S1 issued Complainant a Letter of Instruction (LOI), citing the issues with his tardiness. ROI, 4, 328-332. Over an 18-month period, Complainant was charged with committing over $13,000 worth of time card fraud. ROI, 589-590. Complainant was cited for misrepresenting facts during the Agency’s investigation of the alleged time card fraud. ROI, 596. S2 averred that “Complainant had a history of coming as he pleased with no regard to set work hours.” ROI, 1273. Management averred that Complainant was the only one having time and attendance issues in his work unit. ROI, 1339. During a February 12, 2015 meeting with Complainant, S1 and S4 counseled Complainant regarding AWS and his responsibilities regarding calling in sick. At the time, Complainant had made a harassment claim against S1. Complainant believed that S1 engaged in harassment when she called him at home to check on his whereabouts. S1 stated that Complainant volunteered to do a project in October 2015, but he did not follow through. She said he volunteered for an additional duty, which he never even started. ROI, 1019. S1 stated she has never called Complainant a name or publicly shamed him and has not seen anyone else do so. ROI, 1025. S3 stated that Complainant would watch television, while the NCOs would do his work. ROI, 1314. Another manager also stated Complainant spent most of his time watching TV, surfing the web or doing Sudoku puzzles. ROI, 1351. S3 stated that he did not treat Complainant differently, but there were occasions when Complainant became combative towards him and he “would have to get the situation under control.” ROI, 1299. S3 states he did not make fun of Complainant when Complainant was looking up a word in the dictionary and did not publicly shame him. ROI ,1307. S4 stated that Complainant, in response to a May 21, 2015 email, referred to management as “managerial Klansmen.” ROI 1119-1123, 1233. On June 5, 2015, Complainant received a Letter of Caution (LOC) requiring that he notify S3 when he was going to be away from his desk for more than 15 minutes. ROI, 1131. Complainant was never placed on a Performance Improvement Plan (PIP). ROI, 1141. Of the 31 incidents that Complainant listed in support of his harassment claims, 27 occurred before he made EEO contact in this case. S1 denied knowledge of his prior EEO complaint. 2019005776 4 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment on June 28, 2019. The AJ found that summary judgment was appropriate because Complainant failed to present evidence that demonstrates that a genuine issue of material fact or credibility existed on the issue of discriminatory intent and failed to satisfy the motive element required to prove harassment. The AJ found that the Agency provided a legitimate non-discriminatory explanation for its actions. The AJ stated that, although Complainant disagreed with management’s actions, he failed to produce evidence which demonstrated a genuine dispute of material fact or credibility regarding the actions. The AJ concluded that his harassment claim could not survive summary judgment because Complainant failed to provide evidence that any of the named management officials acted with a discriminatory motive against him because of his disability or in reprisal for his protected activity. The AJ also found no evidence of a causal nexus between Complainant’s first complaint (four years earlier) and the alleged incidents at issue in this case. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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. 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. 2019005776 5 Based on our own review, we find no error in the AJ’s decision. Assuming Complainant established the elements of his prima facie claims, it was undisputed that the Agency determined that he failed to meet the Agency’s performance and time and attendance expectations. Management witnesses explained Complainant was not issued a bonus because the award was tied to the employee’s performance appraisal ratings. He was issued a Letter of Instruction because he had a serious tardiness problem and an investigation uncovered that Complainant had engaged in time card fraud over an 18-month period. He was issued a Letter of Caution on June 25, 2015, due to his multiple performance deficiencies. We recognize that Complainant disagreed with management’s perception of his performance. It was undisputed, however, that the Agency regarded his performance as inadequate, and that he had been counseled regarding the perceived performance deficiencies. There was no evidence that he was ever placed on a PIP, but was issued a Letter of Caution, Letter of Instruction and a reprimand for comments that he acknowledged making. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. The evidence of record fully supports the AJ’s determination that there is absolutely no evidence to indicate a discriminatory or retaliatory motive played a role in the events at issue. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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). 2019005776 6 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. The court has the sole discretion to grant or deny these types of requests. 2019005776 7 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 25, 2021 Date