0120110880
08-14-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120110880
Agency No. DIA-00072-2009
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 18, 2010 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 Agency's final decision (FAD), which found that Complainant failed to demonstrate that she was subjected to discrimination, is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Intelligence Officer, GS-10 at the Agency's facility in Washington, D.C. Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (mental) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. She was not promoted as she stated she should have been;
2. She may have received an "Unacceptable" performance evaluation (close-out rating for position she left in April 2009);
3. She was subjected to an Inspector General's (IG) investigation regarding her time and attendance in November 2008; and
4. She was harassed when:
a. Officer 1 requested her pre-deployment schedule in July 2008;
b. Officer 1 called a deployment manager to verify her time and attendance on August 8, 2008;
c. She had to provide Officer 2 with a narrative of her pre-deployment schedule on September 18, 2008; and
d. She had to release medical records in February 2009.
Claims 1, 4a, 4b, and 4c were dismissed because Complainant had previously raised the same matters in a November 2008 complaint which she voluntarily withdrew. Claim 2, was dismissed as it was considered a proposed action, and claim 3, as well as claims 4a, 4b, 4c, and 4d were dismissed as untimely.
On October 20, 2009, Complainant amended her complaint to include:
5. In September 2009, she received a "successful" performance evaluation (close-out rating) for the position she left in April 2009, which included derogatory comments.
Following an investigation by the Agency of claim 5, Complainant requested a FAD. The FAD found that Complainant failed to show that she was subjected to disability discrimination because management was not aware that she considered herself to be medically impaired or disabled. Moreover, the Agency found that even assuming that Complainant was a qualified individual with a disability - it articulated a legitimate, nondiscriminatory reason for its action, namely, that Complainant's performance evaluation was a fair evaluation of her performance during the period of evaluation and the comments were not derogatory but descriptive of her performance.
The comments included:
[Complainant] achieved an overall successful rating in the performance objectives, with one objective being achieved partially - not conducting enough collection operations. [Complainant] will need continued development in a number of the performance elements, to include critical thinking skills, communication, and most importantly leadership-integrity. [Complainant's] efforts reflect overall successful performance and contribution to Det 421 mission accomplishments.
[Complainant's] effectiveness as a collector was undermined by a failure to grasp collection priorities, develop clear collection plans and a demonstrated inflexibility in following obvious but unanticipated leads. Her propensity to blame others for her own operational and administrative weaknesses while distracting peers, mentors and supervisors from mission inhibited her mentors' efforts to prepare her to operate independently against targets. Her improvement is due to increased reporting, but as noted, this is based on one meeting and little of the material is derived from the debriefing of a source. Her transfer followed notification of my intent to place her on a performance improvement plan. Recommend permanent reassignment to support or analytic duties.
With regard to Complainant's retaliation basis, management indicated that Complainant filed a complaint in November 2008 (Agency Case No. DlA-00003-2009) and subsequently voluntarily withdrew it in January 2009. The Agency maintained that, given her documented performance even before she withdrew the first complaint, her continued minimally-acceptable work thereafter and the failure to demonstrate a nexus between her prior EEO activity and alleged retaliatory action, there was no persuasive evidence to infer retaliation. Moreover, management indicated that it had documented that Complainant was minimally meeting expectations but her supervisor was unable to give her a rating below successful because Complainant had not been officially informed that she was performing below the successful level and warned that she may receive a final overall rating below successful.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the witnesses involved in her complaint did not tell the truth. She also maintains that she did not receive consideration and was not given anything in exchange for her withdrawing her claims, 1, 4(a), (b), and (c) in her prior complaint.
In response, the Agency asserts, among other things, that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to show that those reasons were pretext for discrimination. The Agency requests that the FAD be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established prima facie cases of disability and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions with respect to claim 5 as discussed above.1 We find that other than Complainant's conclusory statements why she disagrees with the finding, she has not provided any evidence which shows that discriminatory animus was involved. In fact, we note that Complainant does not dispute the testimony concerning her performance. Her primary contention appears to be that her supervisor described the problems that she was experiencing. The Commission finds, however, that it was within the supervisor's right to describe his observation of her work performance. Further, with respect to Complainant's contention that she did not receive anything from the Agency for withdrawing her EEO complaint in the past, the Commission finds that Complainant's argument is misplaced in this case. Complainant has provided no evidence that she was coerced into withdrawal her complaint. Accordingly, we find the preponderance of the evidence of record does not establish that discrimination occurred. Therefore, the Agency's FAD which found no discrimination is AFFIRMED.
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" 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
___8/14/14_______________
Date
1 We also find no persuasive reason for reversing the Agency's procedural dismissals. Accordingly, those dismissals are AFFIRMED.
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0120110880
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110880