Chere S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Jan 11, 2018

0120160147 (E.E.O.C. Jan. 11, 2018)

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

Chere S.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120160147

Agency No. DIA-2014-00067

DECISION

On September 21, 2015, 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
August 24, 2015, 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. 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 Production Review
Coordinator, GG-11, in the Human Intelligence Division, Operations Branch, Asset Risk
Management Team of U.S. Central Command (U.S. CENTCOM) Intelligence Branch. On
October 14, 2014, Complainant filed an EEO complaint alleging that the Agency:

(1) subjected her to a hostile work environment based on sex (female/pregnancy) and
reprisal (protected EEO activity) when:

(a) from February 25, 2014 to April 15, 2014, the National Intelligence University
(NIU) conducted an ethics investigation into allegations made anonymously on

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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February 11, 2014. The anonymous allegations stated that Complainant, an NIU
student, was completing academic assignments during the duty day for a
USCENTCOM Intern (C1) for financial gain;

(b) on April 17, 2014, she received a Letter of Counseling from her first-line
supervisor (S1) for tardiness. The Letter of Counseling changed her work
schedule from AWS3 (an alternate work schedule) to AWSO (a basic work
schedule);

(c) in April 2014, S1 denied her request to change her work schedule back to
AWS3;

(d) during April 2014, S1 made several inappropriate comments concerning her
pregnancy and likelihood of promotion in the future;

(e) on June 4, 2014, she was dismissed from NIU;

(f) on August 7, 2014, her appeal of the NIU dismissal was denied;

(g) on June 11, 2014, she was notified that she was not selected for promotion
under the Occupational Advancement Program (OAP) because she “failed to
demonstrate that she could come to work on time, follow leadership guidance
concerning task prioritization, and ensure sensitive information is consistently
safeguarded;”

(h) on August 22, 2014, she received her performance appraisal for the period of
October 1, 2013 through June 13, 2014, in which her rater (S1) and reviewer (S2),
stated in their comments that she lacked integrity and cited her disenrollment from
NIU and contradictory sworn statements; and

(i) on August 22, 2014, her access to the U.S. CENTCOM Intelligence
Directorate, X Division (CIDX) spaces and the Joint Worldwide Intelligence
Communication System (JWICS) was revoked and she was ordered to pack her
things and relocate to the Resources and Requirements Division (RRD) pending a
security investigation; and

(2) subjected her to discrimination2 based on her sex (female-pregnancy) and retaliation
(prior protected EEO activity) when:

(a) on August 7, 2014, the appeal of her NIU dismissal was denied;

2 The Agency dismissed three additional claims that were properly dismissed pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. We note that Complainant does
not dispute this issue on appeal.
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(b) on June 11, 2014, she was notified that she was not selected for promotion
under the OAP because she “failed to demonstrate that she could come to work on
time, follow leadership guidance concerning task prioritization, and ensure
sensitive information is consistently safeguarded;”

(c) on August 22, 2014, she received her performance appraisal for the period
October 1, 2013 through June 13, 2014, in which S1 and S2 state in their
comments that she lacked integrity and cited her disenrollment from NIU and
contradictory sworn statements; and

(d) on August 22, 2014, her access to the CIDX spaces and the JWICS was
revoked and she was ordered to pack her things and relocate to the RRD pending
a security investigation.

After 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). The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged. Complainant filed the instant appeal but did not submit any statement or brief in support
of her appeal.

FACTUAL BACKGROUND

NIU Investigation

The record supports the finding that management officials were anonymously alerted to
allegations that C1 was paying Complainant to write his papers. The President of NIU (NIU2)
appointed the Director of NIU, Southern Academic Center (NIU1) to investigate Complainant’s
alleged academic misconduct. The NIU Investigation began on February 25, 2014, prior to the
knowledge of Complainant’s prior EEO activity or her pregnancy. The record shows that
Complainant provided two official statements that were contradictory and that she admitted to
logging into the website of the college that C1 was attending and posting work using C1’s user
ID, which was contrary to the policies of the college. In addition, Complainant acknowledged
that she wrote approximately 25-30 percent of one of C1’s papers. NIU1 concluded that
Complainant’s contradictory statements reflected a lack of candor and academic misconduct.

Following the NIU investigation, on June 4, 2014, Complainant was dismissed from NIU
because she violated NIU’s Student Academic Integrity requirements. Complainant appealed
this dismissal and on August 7, 2014, NIU2 denied the appeal. NIU2 explained that he denied
Complainant’s appeal because in her own testimony, “she admits to fraud; she admits to lying;
and she admits to cheating.”

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Tardiness/Letter of Counseling/Flexible Schedule

S1 asserts that Complainant had been late frequently for months prior to his decision to issue the
Letter of Counseling. S1 also stated Complainant had been verbally counseled about tardiness
several times per week from October through December 2013, and almost daily in January 2014.
S1 further claimed that Complainant was verbally counseled the day before her first written
counseling in early February 2014. Complainant’s co-worker corroborated S1's testimony. In
addition, Complainant, herself, acknowledges that she had received prior verbal counselings for
tardiness.

S2 explained that Complainant’s request for a flexible schedule was denied due to her prior
tardiness and her unresponsiveness to prior counseling on the issue. S2 also states that he needed
to change Complainant’s schedule to allow management to maintain accountability of
Complainant.

Promotion

Complainant claimed she was discriminated against when she was not promoted through the
OAP. The record shows that the Chair of the OAP Panel (P1), who performed the third-level
review of the candidates, explained that there were three levels of review of each candidate: the
first level was the candidate’s Readiness Assessment Form which the candidate provided
indicating the candidate’s training and work accomplishments during the relevant period; the
second level was the supervisor’s and reviewer’s evaluation of the candidate’s readiness for
promotion; and the third level involved review by the panel. P1 further explained that out of 40
total candidates, 13 candidates were promoted in 2014.

P1 denied that he was aware of Complainant’s EEO activity. P1 explained that each candidate
was evaluated in six areas: customer care, technical competence/problem solving,
cooperation/teamwork, communication, contribution toward mission accomplishment, and
potential for future contributions. P1 claimed the determination regarding who to promote was
made based upon the OAP Panel’s assessment of each candidate’s readiness to serve at the next
grade in the six categories listed above. He explained employees were first judged ready (or not
ready) for promotion, and those determined to be ready for promotion were then ranked or
ordered by grade from most ready to least ready for promotion. P1 also explained that
individuals were then selected from the order of merit for each grade based upon the promotion
allocations provided by Agency’s Office of Human Resource and Chief Financial Officer.

P1 explained that Complainant was not promoted because her rater and reviewer did not
recommend her for promotion. In addition, P1 stated that he and the panel members agreed with
Complainant’s rater and reviewer that she was not qualified in several categories. Although
Complainant’s first and second-level supervisors provided recommendations to the panel
regarding whether she should be promoted, the panel made the final decision. The notes from
the panel members’ evaluations indicated that they thoroughly evaluated Complainant’s self-
assessment, her performance evaluations, her supervisor’s recommendations and her in-person
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interview. The comments from the panel members were consistent and indicated a consensus
that Complainant had the potential to be an outstanding employee. However, they also
determined that she had several performance issues, such as her persistent tardiness and her
questionable conduct in the NIU matter, which were pointed out by her supervisors and which
the panel felt made her unready for promotion at that time.

Performance Appraisal

Complainant received a “fully satisfactory” performance appraisal during the relevant time-
frame. In addition, to various positive comments, she received negative comments pertaining to
the results of the NIU investigation. Specifically, it was noted that she “demonstrated a lack of
integrity in her involvement in improper conduct that resulted in her disenrollment from the
National Intelligence University. When questioned in an official USCENTCOM investigation,
she provided a sworn statement that contained false information. Only when presented with
evidence to the contrary did she retract her original statement and provide a second sworn
statement with truthful answers.” Complainant claimed these negative comments were made in
April 2014 (i.e., several months before the decision on the NIU investigation in July 2014).
However, the record shows that the performance appraisal was signed by S1 on June 11, 2014,
while the decision to remove Complainant from NIU was made on May 30, 2014.

Revocation of Access to U.S. CENTCOM spaces and the JWICS

S2 explained that he and the Deputy Chief, Counterintelligence and Human Intelligence
Division, GG-15 (S3), made the decision that someone who had the lapses in judgment and
integrity issues that were revealed in the NIU Investigation was not trustworthy to handle
classified defense information. Accordingly, S2 asserts they believed it was their responsibility
to remove Complainant from access to classified information and conduct a separate inquiry as
to whether she should have that access in the future. S3 stated that “by knowingly lying to an
investigating officer and providing a signed, false official statement, [Complainant]
demonstrated questionable judgment, and a flawed decision making process, a lack of integrity,
and a willingness/attempt to cover up her actions” which created an unacceptable risk from an
insider threat perspective.

Harassing Statements

Complainant claimed that S1 told her that her pregnancy was a choice and that no one told her to
get pregnant. She also claimed S1 told her that if she was going to use her pregnancy as an
excuse not to go to training, it would be her fault and she could not complain if she were not
promoted.

S1 denied making such comments. In addition, C2, whom Complainant names as a witness to
the alleged comments, denied that he ever heard S1 commenting on Complainant's “pregnancy,
her medical condition of being pregnant, or her potential promotion.”

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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

To prevail in a disparate treatment claim such as this, 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). 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. Tx. 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
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We agree with the Agency in finding that Complainant failed to establish by a preponderance of
the evidence that the Agency’s legitimate non-discriminatory reasons for its employment actions
were a pretext or otherwise motivated by discriminatory or retaliatory animus. We also note that
management officials deny making the derogatory or retaliatory statements alleged by
Complainant. Moreover, aside from Complainant’s bare and uncorroborated assertions, the
record is devoid of evidence that such comments were made.

CONCLUSION

Accordingly, based on a thorough review of the record we AFFIRM the Agency’s final decision
finding that Complainant failed to prove the claims as alleged.

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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

January 11, 2018
Date