Latricia P.,1 Complainant,v.Gina C. Haspel, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Mar 14, 2019

0120171514 (E.E.O.C. Mar. 14, 2019)

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

Latricia P.,1
Complainant,

v.

Gina C. Haspel,
Director,
Central Intelligence Agency,
Agency.

Appeal No. 0120171514

Agency No. 15-19

DECISION

On March 18, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency
decision (FAD) dated February 21, 2017, concerning her 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. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Technical Intel Officer (Targeter), GS-12 at the Information Operations Center in Washington,
DC.

On May 29, 2015, Complainant filed an EEO complaint, as amended, alleging in relevant part that
the Agency harassed her, as applicable, based on her sex (female and parent who is female),
disability (Lyme’s disease), age (48), and reprisal for prior protected EEO activity under Title VII
and the ADEA, and as applicable, the Rehabilitation Act, which created a hostile work
environment 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.
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1. From September 2013 through February 2015, her first line supervisor (male, age 46, no
disability, no prior EEO activity) (S1), would not acknowledge verbally or via email her
request for a temporary duty assignment (TDY), and it was not granted.

2. From November 2013 through January 2015, on several occasions she tried to discuss work
related scenarios with S1 and he gave inadequate answers, rolled his eyes, threw his hands
up in the air, and was condescending in tone.

3. In November 2013, S1 accused her in front of colleagues of leaving work without
authorization albeit he previously approved her request for leave.

4. On 30 April 2014, while she was out of work due to surgery, S1 charged her accrued leave
rather than leave from a donated medical leave bank.

5. On 25 November 2014, during a meeting with S1, he ordered her to shut the door and sit
down, then paced back and forth with clenched fists and told her he did not like her tone in
an email she sent.

6. In December 2014, S1 told her that senior management was spreading rumors about her
which impacted his management of her.

7. In December 2013, S1 accused her in front her colleagues of being away from her desk too
long.

8. On 23 January 2015, S1 humiliated her in front of her colleagues by questioning her
excessively at her desk about having a low leave balance.

9. In February 2015, S1 said he would meet with her weekly to track her progress, but failed
to meet with her.

10. In March 2015, her mentor (Mentor) (male, age 48, severely arthritic knee, no prior EEO
activity) removed her from a new assignment after two weeks and placed her in a position
reporting directly to him.

11. In March 2015, her successor first line supervisor (female, age 51, no disabilities, no EEO
activity) (Successor S1) moved her from a maxi-flex schedule to a standard tour-of-duty.

12. From March 2015 through April 2015, Mentor requested that she complete a daily check-
in/out via email to verify her arrival and departure times.

13. From March 2015 through April 2015, Mentor overloaded her with work while providing
limited guidance and mentorship to intimidate her.

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14. From March 2015 through April 2015, Mentor demeaned her in front of her colleagues by
including a third party in meetings and speaking to her in a condescending tone therein.

15. From March 2015 through April 2015, Mentor gave Complainant a manual and told her to
"figure it out on her own" rather than train her to complete her tasks.

16. When sometime between March 2015 and May 2015, Mentor told Complainant's colleague
that she was an idiot, that he was glad she was gone, and that she did not know what she
was doing.

17. On 29 April 2015, Mentor gave her a “MFR” critical of her performance.2

18. On 14 May 2015 her Performance Appraisal Report (PAR) by S1 for the period covering
August 1, 2014 to January 2, 2015, was finalized after adjudication with "marginal" ratings
in three competency categories and an overall "marginal" rating, resulting in her receiving
a Performance Improvement Plan and being non-competitive for a series of jobs for which
she applied.

19. During the week of 18 January 2016, she received a PAR for the period covering August
10, 2015 – November 27, 2015, by her successor first line supervisor (male, age 51, no
disability, no EEO activity) (Subsequent Successor S1), who served as her supervisor
during the PAR period, gave her marginal ratings in three out of the four competencies and
an overall rating of marginal.

20. On 27 January 2016, her name was not included as part of any office team in an email that
was sent to the office addressing the office reorganization and her colleagues laughed at
her for not being included.

The Agency also accepted incidents 1, and 10 – 20 as independently actionable claims. At the
conclusion of the investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a FAD.

The Agency held that Complainant did not make out a prima facie case of discriminatory hostile
work environment because she failed to show that she was harassed based on her protected groups
or that the incidents she identified were sufficiently severe or pervasive to rise to the level of
actionable harassment. In making this holding, the Agency reasoned that the record did not show
some incidents occurred, did not show others occurred as alleged, that Agency officials gave
legitimate nondiscriminatory reasons for other incidents, and management was not motivated by
discrimination. On Complainant’s independently actionable claims, the Agency assumed,
arguendo, that Complainant made out a prima facie case of disability discrimination, and did not

2 The MFR suggests Complainant was mentored by Mentor from February 19, 2015 – April 21,
2015.
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establish a prima facie case of discrimination based on her sex, age, and reprisal. The Agency
found that regardless, it articulated legitimate nondiscriminatory reasons for its actions, and
Complainant failed to prove these explanations were pretext to mask discrimination.

Below are some examples recounted in the FAD. Regarding Complainant’s performance appraisal
by S1 with an overall rating of Marginal, the Agency credited S1’s statement that Complainant
had difficulty providing fundamental targeting discipline in her work, was unable to consistently
listen nor did she seek additional information, was unable to pull together multiple streams of
reporting or target sets, lacked professional accountability, and had to be consistently reminded of
meetings and often missed them. Regarding Complainant’s performance appraisal by Subsequent
Successor S1, the Agency credited his explanation that Complainant failed to develop technical
target leads expected at her grade level, and credited Complainant’s then second line supervisor’s
(female, age 42, no disability, no EEO activity – S2) explanation that Complainant failed to make
connections between information nor implement targeting methodologies. On Complainant’s
allegation that Mentor gave her limited guidance, the Agency found that Mentor provided ample
testimony and documentation to the contrary.

On incident 1, the Agency observed that S1 did acknowledge the requested TDY, i.e., he emailed
her that he wanted a detailed plan for the proposed TDY [a copy of which is in the record], but
Complainant did not respond. On incident 2, the Agency referenced S1’s statement that he recalled
no time that he behaved toward Complainant as described, and his suggestions that he provided
Complainant good guidance.3 On incident 4, the Agency found that S1 misinterpreted a leave
regulation, and the matter was corrected after a time and attendance person brought the error to his
attention. On incident 10, the Agency found that Mentor did not make the decision to give
Complainant a new assignment. On incident 12, the Agency found that Successor S1 made the
request for Complainant to send check-in/out emails daily, not Mentor. The Agency credited
Successor S1’s explanation that Complainant was not located near her, and she was responsible
for Complainant’s time card being accurate. The Agency also noted that Successor S1 required
Mentor to send check-in/out emails to Successor S1. The Agency found no discrimination, and the
instant appeal followed.

ANALYSIS AND FINDINGS

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C.
Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory
harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII [or the
Rehabilitation Act] must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is physically threatening or

3 In fact, S1 stated that this alleged behavior by him did not occur. ROI, Affid. E-2, at 58, response
to question 46.
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humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an
employee’s work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment." Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

To prevail on her individually actionable claims, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with for this claim, however, since the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation was a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993).

Complainant has not shown that the Agency’s assessment of her performance was based on
discrimination or reprisal. Multiple Agency officials who reviewed Complainant’s work in the
capacity of supervisor or mentor came to the same conclusion that her performance as targeter was
marginal. These assessments were made either formally in ratings or via their descriptions thereof,
and were backed with statements by each, some very detailed, and documentation. Likewise, the
record shows with specificity that the Agency provided Complainant extensive mentoring.

Further, after reviewing the record, we agree with the Agency that Complainant did not prove she
was harassed based on her protected groups, or disparately treated based on her protected groups.

The FAD is AFFIRMED.
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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. 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.

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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. 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 14, 2019
Date