[Redacted], Lillian C., 1 Complainant,v.Dr. Christopher Scolese, Director, National Reconnaissance Office, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022003309 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lillian C.,1 Complainant, v. Dr. Christopher Scolese, Director, National Reconnaissance Office, Agency. Appeal No. 2022003309 Hearing No. 570-2019-00157X Agency No. NRE-0011-2017 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s April 27, 2022, 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. The Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was on detail from her employment with the Central Intelligence Agency (CIA) serving as Information Management Technical Officer at the Agency from December 2012 until April 2016, and was promoted to GS-13 during that assignment in October 2013. In 2016, Complainant obtained certification as a Diversity professional and served in a Joint Duty Assignment in the Agency’s Office of Equal Employment and Diversity Management (EEO Office) as a Diversity Program Manager, GS-13. From April 2016 through September 2016, her immediate supervisor was S1 (African American, black). S2 (African American, black) served as her supervisor from October 31, 2016, until her departure on June 9, 2017. 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. 2022003309 2 On December 5, 2017, Complainant filed a complaint alleging that she was discriminated against on the bases of her race (Caucasian), color (white), and in retaliation for engaging in prior protected EEO activity. Specifically, she alleged that: 1. Management officials in the EEO Office discriminated against her by subjecting her to a hostile work environment when the Deputy Office Director, A1 (Black), and the Office Director, A2 (Black) took one or more of the following actions: a. On June 8, 2016, A2 revoked Complainant’s telework schedule option; b. On June 9, 2016, A2 reversed his decision to revoke Complainant’s telework schedule option; c. In October 2016, and October 20l7, A2 and S2 did not recommend her for promotion; d. On October 6, 2016, Complainant learned that A2 revoked her telework schedule option; e. On October 26, 2016, A2 informed Complainant that she did not have a signed telework agreement on file with the Agency’s EEO Office and telework would only be allowed on days that OPM guidance allowed for the telework option; f. In June 2017, Complainant was not awarded an Exceptional Performance Award (EPA) or an Individual Achievement Award (IAA); and g. Between June 2016, and June 1017, A2 regularly tasked Complainant at the end of the day. 7. Management officials discriminated against her when, in June 2017, she was not awarded an EPA or IAA. 8. Management officials discriminated against her between June 2016, and June 1017, when A2 regularly tasked her at the end of the day. 9. Management officials discriminated against her when, in October 2017, S2 did not recommend her for a promotion. 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Although she initially requested a hearing, Complainant withdrew her request and asked for a final decision from the Agency. 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 and harassment as alleged. This appeal followed. 2 Claims (2) - (6) were dismissed on the grounds of untimely EEO counselor contact and are not at issue in this decision; therefore, they will not be addressed further. 2022003309 3 Claims 1(a) and 1(b): In early 2016, A1 chaired the panel that interviewed and selected Complainant to serve on her Joint Duty Assignment as an EEO Office Diversity Program Manager, GS-13. During the interview, Complainant inquired and received tentative support from A1 for a compressed work schedule with one day off a week (Monday) as well as a te1ework schedule option on Friday of each week, if accepted for the position. Complainant began her assignment to the EEO Office on April 17, 2016. According to Complainant, before she accepted an assignment to the EEO Office in April 2016, she received conditional approval from A1 for a flexible schedule and telework. In June 2016, A2 became the new Office Director. Complainant stated that on June 8, 2016, A2 verbally removed the option of telework for all the EEO Office staff without any reason. On or about June 9, 2016, Complainant spoke to A2 about her being able to telework and received his verbal authorization to continue teleworking. Complainant noted that three of the four EEO Office staff (including her) who teleworked at that time were Caucasian females. The staff consisting of Complainant, C1 (Caucasian, white), S1, and C2 (Caucasian, white), all were initially removed from the telework option when A2 began his tenure. Complainant stated that she believed that the decision to revoke telework was harassment because: [A2] could have met with each person (there were only 4 of us) that had been approved to telework before he revoked everyone’s telework. His actions only served to make the individuals [who] had been teleworking unhappy and upset adding to the constant negative and hostile environment that already existed. It immediately made us feel like he was jerking us around and that he was enforcing his power and dictatorship; setting a negative tone right from the very start as Director . . .. S1, among other things, stated that A2 “had some issues with employees working at the [telework center],” and that they “[w]ere all perplexed by his decision as he had just [entered on duty] in the position of [Director,] [of the EEO office] and didn’t know much about his staff.” S1 noted that no one had performance problems relating to using telework, but A1 told staff in mid- June that they could no longer use the telework centers. She stated that A2 reversed the decision after meeting with the employees A2 stated that Complainant’s telework schedule option was not revoked on June 8, 2016. He maintained that: [r]egarding her Friday work schedule was not as definitive as this allegation suggests. I do recall Complainant telling me she wanted to telework on Fridays for ‘quality of life.’ I questioned her flexibility on the issue because a personal convenience with no benefit to mission for a brand new [EEO Office] officer did 2022003309 4 not seem like something I could justify. She was correct to perceive that I was not in favor of it. I was not. That said, I was unfamiliar with the [Agency’s] telework policy and guidelines and the [EEO Office] officers who had teleworked on Fridays prior to my arrival. I decided to stand down on the issue for the time being until I had a better understanding of it. I had no prior experience with officers who teleworked. Claims 1 (d) and 1 (e): Complainant stated that A2 finally ended her telework option on October 6, 2016, and that she met with him on October 26, 2016, to discuss his decision. Afterward, A2, she stated, wanted her to document their discussion that she would only receive telework when OPM guidance permitted it for inclement weather. Complainant thereafter initiated a new telework agreement “to reflect [A2’s] decision,” which was not approved until January 19, 2017. At that time, Complainant was now the only Caucasian employee who teleworked, because the other employees, C1 and C2, had left the unit, and S2 was now the supervisor of the unit. According to Complainant, A2 felt that as a “small customer-service oriented office,” it was necessary for the “effective execution” of the mission that officers be present as often as possible to promote teamwork and collaboration. He also cited the need to provide backup for officers who are engaged in training or on TDY, to improve communications both within the office and with customers and partners, and to carry out duties that required their physical presence. Complainant noted that S1 had already approved her work schedule, which included telework every Friday and had provided the schedule to A1. A1, however, maintained that the Telework Office did not have a copy of Complainant’s written telework agreement on file, and Complainant did not provide a copy. A1 attributed any delays to processing Complainant’s new agreement to vacations and the holiday season. A2 explained that Complainant was already authorized to work a compressed work schedule, i.e., four ten-hour days per week, with every Monday off; therefore, allowing EEO Office employees to be out of the office every Monday and every Friday, except as a reasonable accommodation or to fit a part-time work schedule, was not in the best interest of the mission. A2 noted that, with the exception of C3, who was the only other officer on a compressed work schedule besides Complainant, none of the other officers were out of the office every Friday. A2 indicated that: [I] absolutely allowed for temporary understaffing of the office for training, TDYs, and team building. This was for the greater good of the office and up to my discretion as office director. Ultimately, I based my decisions on the needs of the Office while still attempting to be fair to the individual officers’ needs for work/life balance. 2022003309 5 Claims 1(c) and 9: During 2016, employees of the CIA who were eligible for promotion submitted petitions through the online promotion petition tool. Although Agency managers provided feedback, the record indicates that eligible employees initiated the process for promotion consideration. Complainant, S1, S2, A1, and A2 all indicated that CIA regulations and policies governed, and that the CIA made the decision whether or not to promote Complainant. Complainant stated that she had problems submitting a petition using the promotion tool, and that she reported her concerns to the Office of Human Resources (OHR). S1, she stated, was able to complete the supervisory portion of her petition. S1 stated that she recommended Complainant for a promotion; however, she believed that Complainant’s petition was not successfully submitted because she had problems with the promotion software. She recommended that Complainant contact OHR With respect to 2017, Complainant stated that she informed S2 that she would be submitting a petition for promotion, but she was not promoted again. She was not aware if A2 or S2 recommended her for promotion. Complainant believed that A2 “had a hand in not recommending her for promotion by influencing [S2’s]” decisions regarding her. S2 stated that she recommended Complainant for promotion in 2017. She noted that Complainant was the only officer that she supported for promotion in October 2017. A2 emphasized that he did not recommend anyone from the EEO Office for promotion in either 2016 or 2017. He noted that he was not Complainant’s supervisor or her reviewer. A1, among other things, stated that she departed the Agency on June 9, 2017; therefore, she would not have been present when Complainant submitted a petition in October 2017. She did indicate, however, that she recommended one individual for promotion in 2016, who was a GS- 14, Caucasian and white, and she recommended a GS-15 individual, who was African American and black, in 2017. Complainant noted that while A1 and A2 may not have been formally involved in recommending or not recommending her for promotion, that did not preclude them from speaking to her supervisor or other individuals about her performance. Claims 1 (f) and 7: Complainant stated that the decision not to give her an EPA or IAA in June 2017 was based on her race and color because she “was the only Caucasian [White] person on the Diversity Management Team with proven performance; [Intelligence Community] wide mission impact, and accomplishments which improved EEO relationships with [Employee Resource Groups], Diversity Liaisons and served to inform the NRO workforce.” 2022003309 6 Complainant stated that, in retaliation for seeking guidance from B1, the Agency Ombudsman, who authored a report concerning numerous complaints of a hostile work environment in the workplace, A2 “shut down” her suggestions to improve the diversity management team. According to Complainant, A2 did not give out awards until after she departed the office in June 2017. Complainant argued that the awards panel lacked fairness and objectivity because all the program chiefs were not represented, and because most, if not all of the panel were African Americans. S2, A1, A2, and C3 all noted that EPA awards were offered by the CIA, not the Agency. Complainant had received EPAs for assignments before she was assigned to the EEO Office. Regarding IAAs, A1 and A2 stated that S2 was waiting for Complainant to complete an assignment before nominating her for an award. A1 noted that S2 also recommended Complainant for a non-monetary award on or about August 18, 2016. S2 stated that Complainant told her that she deserved an IAA to which S2 responded, “I would have liked to have given you an IAA, but your project hadn’t been completed.” Claims 1(g) and 8: Complainant alleged that, beginning in or around June 2016, A2 would constantly task staff with work at the end of their workday. She also accused him of overburdening the Diversity Management team by adding or removing participants from Unconscious Bias Training (UBT) and Equity training (ET). Complainant stated that A2 would task her with work at the end of the day because she was the only Caucasian, white staff managing the UBT and ET. Complainant maintained that his actions caused her anxiety and stress because she was juggling tasks and responding to difficult customers. A2 denied that he routinely or deliberately tasked Complainant with work at the end of the day. He further stated that, unless the matter was time critical, there was no expectation that assignments be completed that day. S2 stated that A2 was very engaged with the office staff, and towards the end of the workday he would walk throughout the office to speak with staff members about work matters, and this included Complainant. She stated that Complainant did not raise A2’s conduct to her attention as a problem. 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”). 2022003309 7 We find that, assuming arguendo, Complainant established a prima facie case of discrimination based on race, color, and reprisal, the Agency provided legitimate, nondiscriminatory reasons for each of its actions which were set forth in claims 1(a), 1(b), 1(c) and (9), 1(d), 1(e), and 1(f) and (7). We also find that Complainant failed to provide any persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in these matters. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). With respect to Complainant’s hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail with respect to claims 1(a), 1(b), 1(c) and (9), 1(d), 1(e), and 1(f) and (7). See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). Regarding claims 1(g) and (8), we find no persuasive evidence that Complainant was subjected to a hostile work environment. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing, and evaluating performance, providing job- related advice and counsel, acting in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. Here, we find that the actions set forth in claims 1(g) and 8, even if accurately described by Complainant, do not indicate that discriminatory animus played a role, nor do we find that these matters were severe or pervasive enough to have subjected Complainant to unlawful harassment. CONCLUSION Upon careful review of the evidence of record, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final 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 2022003309 8 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). 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. 2022003309 9 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 31, 2023 Date