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

Equal Employment Opportunity Commission

Aug 3, 2022

Appeal No. 2021002507 (E.E.O.C. Aug. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tynisha H.,1 Complainant, v. Dr. Christopher Scolese, Director, National Reconnaissance Office, Agency. Appeal No. 2021002507 Agency No. NRE-0003-2019 DECISION On March 21, 2021, 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 February 4, 2021, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Disability Program Consultant, GS-12 at the Agency’s Directorate of Digital Innovation (DDI) in Washington, DC. On October 10, 2017, Complainant was detailed to the National Reconnaissance Office (NRO), with the Office of Equality and Inclusion under a DDI program. The detail was to last for one to three years. Report of Investigation (ROI) at 148. Complainant’s tour was a one-year tour. ROI at 98. The DDI program Broadening Assignment Policy applicable to the detail reflected that a 1- year optional extension is to be mutually agreed upon by the officer, the host office, and the home office. ROI at 151. 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. 2 2021002507 Complainant’s first-level supervisor (Supervisor 1) was the Disability Program Manager. Supervisor 1 had been detailed to NRO since August 2016 and was scheduled to return to his home agency (CIA) in August 2019. ROI at 98. Complainant’s second-level supervisor (Supervisor 2) was the Chief, Office of Equality & Inclusion, Accommodations Program. Her third-level supervisor (Supervisor 3) was a named official at the Office of Equality and Inclusion. Her fourth- level supervisor (Supervisor 4) was another named official at the Office of Equality & Inclusion. Complainant engaged in protected activity when she filed a complaint against the CIA in 2016. ROI at 10 and 79. Complainant acquired post-traumatic stress disorder (PTSD) and generalized anxiety disorder caused by alleged rape by a coworker years earlier. Complainant's medical professional deemed it "medically necessary" that Complainant be relocated within no less than a 300-mile radius from the alleged rapist; and that she be moved to a "safe work location outside of Washington D.C.” ROI at 80-1, 145, 146, and 163. Complainant asserted that she informed management about her CIA EEO complaint and about her disability; and she provided management with required medical documentation. ROI at 79-80 and 87. According to Complainant, her medical condition prevented her from performing the "essential duties of her job because of the consistent triggers, inability to concentrate and focus on assignments because of fear." ROI at 81. In May 2018, Complainant requested to be reassigned to an NRO facility outside of the Washington metropolitan area. According to Complainant, she offered to submit her request to the NRO reasonable accommodation program, but Supervisor 2 told her "that was not necessary" as Supervisor 2 was "consulting with the CIA reasonable accommodation office" about Complainant's request and would follow up with Complainant. ROI at 82. In August 2018, Supervisor 2 reported back to Complainant that because CIA was Complainant's home office, only CIA could address Complainant's accommodation request. ROI at 83. Thereafter, Complainant filed a reasonable accommodation request with the CIA. CIA acknowledged receipt of Complainant's request, but Complainant alleged she never heard back from CIA about the request. Id. Complainant believed that her reasonable accommodation request was denied. She attested that the agency provided her with a flexible work schedule, but the alternate work schedule did not help her “feel safe in the workplace." Id. Supervisor 2 explained that where joint duty personnel were on loan from the parent agency (CIA), "any assignment change would have to be coordinated with CIA." ROI at 119-20. Supervisor 3 confirmed that explanation, stating that NRO could not grant Complainant's requested accommodation that she be detailed 300 miles from Washington, D.C. because Complainant was a CIA, not an NRO, employee. ROI at 91-2. According to Supervisor 3, he offered to engage in the interactive process with Complainant and the CIA Reasonable Accommodation representative, but Complainant denied Supervisor 3's offer, because it “presented a conflict of interest." ROI at 98 and 104. 3 2021002507 On July 12, 2018, Supervisors 3 and 4 met with Complainant to advise her, with 90-days advance notification, that NRO would not extend Complainant's detail to NRO beyond her one-year tour, ending in October 2018. ROI at 95. In August 2018, Complainant met with Supervisor 4 to advise him that she did not feel safe in the workplace. ROI at 94. Supervisor 3 met with Supervisor 4 and Complainant on October 16, 2018 to discuss Complainant's requested accommodation of reassignment. Id. Supervisor 4 recalled the meeting. He also recalled that he told Complainant that NRO could not grant Complainant's accommodation request because Complainant was a CIA, not an NRO, employee. According to Supervisor 4, NRO did not have any established CIA rotational assignments outside of the Washington Metropolitan Area. Supervisor 4 also stated that he sought to meet with Complainant, along with NRO and CIA reasonable accommodations representatives, to begin the interactive process. ROI at 104. Complainant declined to participate in the meeting, citing a conflict of interest. ROI at 103-04 and 117-18. Both Supervisors 3 and 4 reassured Complainant about her safety at NRO. ROI at 94 and 106-07. On October 24, 2018, Complainant obtained confidential information about another employee whose transfer request had been granted. Complainant copied that employee’s accommodation request from the employee and left the information on the printer. Complainant did not retrieve the documents from the printer. According to Complainant, Supervisor 2 found the documents, brought the documents to Complainant, and then advised Supervisor 4 and Supervisor 3 of the incident. Complainant stated that Supervisor 4 and Supervisor 3 criticized her for leaving the accommodation request on the printer because it contained personally identifiable information (PII), that the accommodation request was none of Complainant's business, and "explained that all cases are different." ROI at 85. Following her meeting with management regarding this incident, Complainant left the office crying and encountered Supervisor 2 who told Complainant to go to the Employee Assistance Program (EAP). Complainant claimed that four guards simultaneously drew, pointed, and cocked their weapons at her. ROI at 85-86. Supervisor 4 stated that none of the responding security personnel had weapons. He stated that he called security operations because Complainant departed the office meeting discussions screaming, yelling and throwing papers down the hallway. Complainant then disappeared from the office suite, and no one could locate her. ROI at 96 and 109. On November 9, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (mental), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, and Section 501 of the Rehabilitation Act of 1973 when: 1. Management officials denied Complainant's reasonable accommodation request on or about August 28, 2018; and 4 2021002507 2. On or about October 24, 2018, Complainant received a directed reassignment returning her to the Central Intelligence Agency (CIA), her home agency, from her Joint Duty Assignment to NRO. At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew the request. In accordance with Complainant’s October 29, 2020 request, the AJ remanded the complaint to the Agency. On February 4, 2021, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, among other things, Complainant reiterates her allegations and contests the Agency’s decision. She asserts, without supporting evidence, that management denied her accommodation request erroneously, claiming that it was CIA’s responsibility to provide accommodation, not the Agency’s. According to Complainant, the Agency could have offered her a telework option as reasonable accommodation or reassigned her to its other locations in the United States outside of the Washington, D.C. area but failed to do so. Complainant argues that Supervisor 4 only offered to meet with her in an after-the-fact attempt to get her to drop her EEO complaint, and that two weeks after she declined the invitation to meet, management reprimanded her for printing an email to provide to the EEO counselor in connection with her accommodations request. According to Complainant, they accused her of misconduct, reported her to security, and immediately terminated her detail in retaliation for her complaint filing. Complainant states that the FAD must be reversed because the Agency made erroneous factual findings and disregarded preponderant evidence of pretext and discriminatory animus. As an example of pretext, she cites a statement made by Supervisor 3 that tours of CIA officers, such as herself, are 2 years plus an optional 1 year. According to Complainant, the policy that Supervisor 4 cited as support for terminating her detail applied to DDI careerists, not CIA employees. Complainant argues that the Agency’s statements regarding her erratic behavior and improper access and handling of sensitive information are also pretextual. According to Complainant, the Agency was angry with her for participating in the EEO process, did not want to provide accommodations, and intentionally triggered her PTSD to create an incident to fire her. Complainant requests that the Commission reverse the FAD, enter judgment for her on both claims, and award her lost wages and benefits, compensatory damages for pain and suffering, attorney’s fees and costs, and any other relief as is fair and just. On appeal, among other things, the Agency reiterates its stated reasons for the challenged actions. It asserts that the record does not support Complainant’s claims, and she could not prevail. 5 2021002507 Regarding Complainant’s appeal statement that the Agency has other locations in the United States outside of the Washington, D.C. area, the Agency argues that Complainant presented no evidence that it was authorized to reassign her or that, more likely than not, there was a vacant funded position for which she was qualified and to which she could have been reassigned. Regarding Complainant’s argument that the Agency could have provided other accommodations such as telework, the Agency asserts that it did provide Complainant a flexible work schedule. The Agency also argues that the record does not show that Complainant requested telework or that it would have been an effective accommodation. The Agency adds that it is part of the United States Intelligence Community and Complainant’s position involved working with classified and sensitive national security information which could not be processed outside of a Sensitive Compartmented Information Facility. Regarding Complainant’s assertion that tours of CIA officers are 2 years plus an optional 1 year, the Agency states that CIA officers who are not assigned per DDI broadening assignments do generally have a standard 2 year tour, but Complainant was detailed under the DDI program designed to make broadening assignments more accessible and potentially not as time consuming. The Agency argues that Supervisor 3’s statement was referring to Supervisor 1 who was a CIA officer detailed to NRO but not through the DDI program. The Agency requests that the Commission deny Complainant’s Appeal and affirm its FAD. STANDARD OF RREVIEW 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”). ANALYSIS AND FINDINGS Disability Accommodation - Claim 1 Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (2012) (as amended) requires that an Agency make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the Agency can demonstrate that doing so would impose an undue hardship. 29 C.F.R. § 1630.9(a) (2017); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance) (revised Oct. 17, 2002). Once an employer becomes aware of the need for an accommodation of an employee’s disability, the employer may engage in 6 2021002507 an interactive process with the employee to identify and implement appropriate reasonable accommodations. See 29 C.F.R. § 1630.2(o)(3) (2019). An Agency may choose among reasonable accommodations as long as the chosen accommodation is effective, and while the preference of the individual with a disability should be given primary consideration, an Agency has the ultimate discretion to choose between effective accommodations. See Enforcement Guidance, supra, at Q. 9. To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See, e.g., Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). For purposes of analysis, we assume, without finding, that Complainant established that she is an individual with a disability. We however find that the record does not support Complainant’s position that the Agency failed to accommodate her. Complainant requested reasonable accommodation in the form of reassignment to an NRO facility outside of the Washington metropolitan area. Complainant’s accommodation request may be cognizable due to her medical professional deeming the reassignment as a medical necessity. It is the Commission’s position that reassignment to a vacant position, as a form of reasonable accommodation, "must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position.” Reasonable Accommodation Enforcement Guidance, Item 24, Modified Workplace Policies, Reassignment. Here, Complainant stated that her medical condition prevented her from performing the essential duties of her job because of the consistent triggers, inability to concentrate and focus on assignments due to fear. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable complainant to perform the essential functions of her current position or all other reasonable accommodations would impose an undue hardship. Ollie L. v. USPS, EEOC Appeal No. 2019000141 (Sept. 22, 2020). In this case, the Agency provided Complainant a flexible work schedule, but that accommodation, according to Complainant, was ineffective. Complainant’s requested accommodation was a reassignment. In reassignment cases, Complainant has the evidentiary burden "to present sufficient evidence to support a finding that, more likely than not, there [existed] a vacant funded position, for which she was qualified and to which she could have been reassigned." Laurence L. v. USPS, EEOC Appeal No. 2019000894 (Apr. 19, 2019). The record is devoid of any evidence that Complainant identified a vacant funded position for which she was qualified and to which she could have been reassigned; and the Agency had no obligation to search for such a position. 7 2021002507 Moreover, management explained, and Complainant did not dispute, that she declined to engage in the interactive process that could have provided an opportunity to discuss possible alternatives with her. Complainant did not refute management’s explanations that they lacked the authority to reassign Complainant because she was a joint duty personnel who was on loan from the CIA without coordination with that Agency. There is also no evidence that Complainant requested telework as a preferred accommodation option. Therefore, her claim fails. Disparate Treatment - Claims 1 and 2 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie (at first sight) case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 2, management explained that consistent with applicable DDI policy, the Agency did not renew Complainant’s broadening assignment for a second year due to her conduct. ROI at 125 and 149. Included in the record is a document titled "Performance Summary Report" for July 1-October 24, 2018 that supports management’s statements of Complainant’s documented conduct issues, including that Complainant resisted change and disregarded senior direction; Complainant's behavior was erratic and unpredictable at times, becoming increasingly common over the final two months. ROI at 258. Management also cited Complainant’s improper access and mishandling of sensitive information as reason for the non-renewal of her detail assignment. ROI at 125 and 149. The Agency articulated legitimate non-discriminatory reasons for the alleged action. We next turn to Complainant to show pretext. 8 2021002507 In an attempt to show pretext, Complainant asserted that other employees did not have their details terminated; and that individuals with disabilities received transfers as reasonable accommodations and she was not. ROI at 83. She however failed to present supporting evidence or elaborate on these assertions. The individual who had received a transfer as reasonable accommodation was an NRO employee, not a CIA employee like Complainant. ROI at 123. Complainant also failed to identify any similarly situated CIA employee on detail to NRO under the DDI career broadening program who engaged in similar conduct as she did but was allowed to extend their detail assignment. See Aguilar v. U.S. Postal Service, EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. Moreover, Complainant did not refute management’s explanations for the challenged actions, and she did not provide a rebuttal statement. ROI at 139-41. Rather, Complainant blamed her unacceptable conduct described in claim 2 on her disability, asserting that she constantly felt fearful while working in Washington D.C., which triggered her PTSD and negatively impacted her ability to concentrate and focus. See ROI at 81 and Appellant’s Brief in Support of Appeal at 1 and 12. Importantly, we have posited that an employer is not barred from imposing discipline or terminating an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and is consistent with business necessity. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 at Question 36 (Oct. 17, 2002). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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 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. 9 2021002507 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. 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. 10 2021002507 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 August 3, 2022 Date