Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Apr 22, 2015

01-2013-1721-0500 (E.E.O.C. Apr. 22, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120131721

Hearing No. 570-2011-00518X

Agency No. FBI201000205

DECISION
On March 18, 2013, Complainant filed an appeal from the Agency’s February 19, 2013 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. The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst within the Weapons of Mass Destruction Directorate at the Agency’s
Headquarters in Washington, DC. She applied for the position of Special Agent but was
dismissed from the New Agent Training Program (NATP) after she failed to achieve the
mandatory minimum score on the Pistol Qualification Course (PQC). On August 3, 2010,
Complainant filed an EEO complaint in which she alleged that the Training Division Chief
(TDC) discriminated against her on the bases of race (Asian) and sex (female) by not giving
her the opportunity to re-qualify on the PQC after her dismissal. She also alleged that the
TDC retaliated against her for contacting an EEO counselor by initiating an internal
investigation against her.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
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requested a hearing, and the AJ held a hearing on August 27, 2012, and issued a decision on
January 2, 2013. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

The NATP is a rigorous qualification program for prospective Special Agents. New Agent
Trainees (NATs) are required to achieve a score of 80% on two of three consecutive attempts
on the PQC. If a NAT cannot pass on the first attempt, she is placed in a remedial program
called “Fast Track,” in which she is given additional instruction and opportunities to practice.
If the NAT cannot pass the PQC after completing the Fast Track program, she is dismissed
from the NATP. The TDC, the Training Division Section Chief, Complainant’s Training
Class Supervisor, and her Firearms Instructor all testified that Complainant failed to qualify on
her first attempt at passing the PQC, that she completed the Fast Track program, and that she
again failed to pass the PQC. IR, Ex 10, pp. 2-3, 7, 10; Ex. 11, pp. 3-4, 7-8; Ex. 12, pp. 3-
6; Ex. 13, pp. 2, 4-7, Ex. 17, p. 14; Ex. 21; Ex. 23; Hearing Transcript (HT) 396-405;
Hearing Exhibit (HE) A4; HE A5; HE C5.

After Complainant was dismissed from the NATP, she sent the TDC an electronic
communication (EC) in which she requested the opportunity to re-qualify on the PQC. The
TDC denied her request citing the Agency’s policy on the recruitment and training of
prospective Special Agents. During the course of her review of Complainant’s EC, the TDC
noticed that the document contained explicit references to what she believed to be confidential
information pertaining to other NATs. The TDC referred the matter to the Chief of the
Internal Investigations Section, who conducted the investigation and found no basis for taking
any action against Complainant. Accordingly, the matter was subsequently closed. IR Ex. 11,
pp. 8-9; Ex. 12, pp. 8-11; Ex. 13, pp. 10-13; Ex. 24, p. 2; Ex. 25; Ex. 28; Ex. 29; Ex. 32A;
Ex. 32J; Ex. 32K; HT 284-301, 308, 405-14, 454, 461, 463-68, 477-80; HE A2; HE A3; HE
C3; HE C8; HE C9; HE C12; HE C13; HE C14.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order prevail on her claim of disparate treatment in connection with
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the TDC’s refusal to allow her to re-qualify on the PQC and reprisal in connection with the
initiation of the internal investigation, Complainant would have to prove, by a preponderance
of the evidence, that the TDC was motivated by unlawful considerations of Complainant’s
race, sex, and/or the fact that she contacted an EEO counselor. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can take the form of
discriminatory statements or past personal treatment, comparative or statistical data, or unequal
application of Agency policy. Richardson v. United States Postal Service, EEOC Appeal No.
01912009 (August 29, 1991). It can also take the form of a deviation from standard
procedures without explanation or justification. Hovey v. Department of Housing and Urban
Development

, EEOC Appeal No. 01973965 (August 31, 2000).
In finding in the Agency’s favor, the AJ had determined that the TDC was a highly credible
witness and accorded her affidavit and hearing testimony great weight. An AJ’s credibility
determination based on the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the testimony or the
testimony so lacks in credibility that a reasonable fact finder would not credit it. See

EEOC
Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). In this case, the
TDC’s testimony had been corroborated by that of four other officials involved in
administration of the NATP, including one of the Firearms Instructors. The TDC’s testimony
is also supported by contemporaneously prepared memoranda and emails documenting
Complainant’s failed attempts to pass the PQC, the reasons for denying Complainant’s request
to be reinstated into the NATP after she failed the PQC for a second time, and the reasons for
initiating the internal investigation.
In support of her contention that the TDC was motivated by unlawful considerations of her
race and sex when she denied Complainant’s request for reinstatement into the NATP,
Complainant testified that as a slender Asian female, she did not fit the standard image of a
Special Agent. She also testified that one of her Field Counselors told her that she reminded
him of his wife, that her Firearms Instructors made fun of her and scrutinized her in ways that
adversely affected her performance, and that she was not given assistance to the extent that
other trainees in the Fast Track program were given assistance. IR Ex. 9, pp. 4-15; HT 35.
On cross-examination, however, Complainant admitted that she was not aware of any negative
comments about her performance being made by training officials and that she needed help
with pistol shooting. HT 176-78. One of Complainant’s fellow NATs, also a female, testified
that she did not observe Complainant being more closely scrutinized or otherwise treated any
differently than other trainees. Ex. 14, pp. 2, 5. As to her contention that the TDC retaliated
against her for filing the instant EEO complaint by initiating an internal investigation against
her, Complainant points only to the fact that she was contacted by an investigator from the
Internal Investigations Section within a few weeks of filing her formal complaint. Ex. 9, p.
25; HT 175; HE C10. Beyond these statements, which are nothing more than her own
speculative assertions, Complainant has not presented any testimony from other witnesses or
documents that contradict the explanations provided by the TDC or the other officials involved
in the personnel actions at issue. We therefore find no basis upon which to disturb the AJ’s
credibility determination regarding the TDC’s testimony. Ultimately, we agree with the AJ
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that Complainant has not sustained her burden of proof regarding the TDC’s motivation for
denying her request for reinstatement into the NATP or initiating the internal investigation.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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”
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
April 22, 2015