[Redacted], Tena C., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Mar 30, 2021

Appeal No. 2020003371 (E.E.O.C. Mar. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tena C.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2020003371 Hearing No. 570-2016-00665X Agency No. NGAE-15-OCC22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 21, 2020, final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Officer (Pay Band 4) at the Agency’s Office of Corporate Communications, Plans and Operations in Springfield, Virginia. Complainant’s first-line supervisor (S1) was promoted and assumed his position in August 2014. In January 2015, Complainant began a two-year detail assignment outside of the Agency. Report of Investigation (ROI) at 47, 45. On July 29, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), religion (Jewish), and age (52) 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. 2020003371 2 1. on May 11, 2015, Complainant received her Pay Band 4 Rank-in-Person Promotion Panel Worksheet; and 2. Complainant was denied a promotion opportunity during the Agency’s Rank-in-Person process for Pay Band 4 employees.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the ROI and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and she must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. As an initial matter, Complainant argued that there were unresolved issues: specifically, her unaddressed Motion to Compel; the denial of Complainant’s discovery requests; and an alleged conflict of interest and misconduct by an Agency Attorney (AA). 2 The Rank-in-Person system is the Agency’s annual process for promotions. Employee self- nominate, and their supervisors provide an evaluation and recommendation. The applications are then forwarded to the Corporate Career Services and reviewed by a panel. In this case, S1 gave Complainant a “do not recommend.” There were approximately 130 applicants and 10 were selected for promotion. Those selected for promotion were rated a score of 8 or 9 from the panelists, while Complainant’s application was rated a 4. ROI at 57, 82-3, 97-8. 2020003371 3 In her Motion to Compel, Complainant requested a specific email from a witness. The Agency opposed Complainant’s motion, noting that this request was untimely and part of discovery requests that were previously denied by the first Administrative Judge.3 We note that Complainant did not dispute the Agency’s assertions that her Motion to Compel was untimely and the requested email was part of the denied discovery requests. Although the AJ did not explicitly deny Complainant’s Motion to Compel, we note that the AJ effectively denied her motion when she issued the Decision Without a Hearing finding that Complainant did not establish a disputed issue of material fact and granted summary judgment for the Agency. Complainant requested that the Commission reverse the previous Administrative Judge’s order, which denied her discovery requests as “not sufficiently relevant.” We note that, under 29 C.F.R. § 1614.109(e), Administrative Judges are granted broad discretion in the conduct of administrative hearings, including the authority to exclude irrelevant or repetitious evidence. On appeal, Complainant argued that “[s]ufficiently relevant is discoverable evidence and there is no basis that it would be cumulative as [the first Administrative Judge] implies in her footnote.” However, we find that Complainant did not establish that the first Administrative Judge abused her discretion when she denied Complainant’s discovery requests. As such, we decline to reverse the order denying Complainant’s discovery requests. Complainant argued that AA "violated conflicts of interest mandates" and “subordinated and aided in [S1’s] false declaration statement and potentially perjury during his deposition,” but we find that these allegations are unsubstantiated. Complainant asserted that there was a conflict of interest when AA was “appointed” when Complainant’s formal complaint was accepted for investigation and continued to represent the Agency when her complaint was forwarded to the hearing stage. Complainant, however, did not show any involvement by AA during the EEO investigation. We note that the Commission has held that, after the EEO process becomes adversarial, i.e., once a request for a hearing is submitted or an appeal is filed with the Commission, an agency’s Office of General Counsel or other designated legal representative has a duty to represent the interests of the agency. Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), request for reconsideration denied, EEOC Request No. 0520140438 (June 4, 2015). Complainant asserted that AA “subordinated and aided” S1’s false testimony by providing copies of other witnesses’ depositions, but she did not provide evidence showing that AA acted to induce S1 to provide false testimony. Complainant also argued that her managers “materially lied” about their role in the worksheet process, such as when S1 “falsely declared” that he and Complainant had back-and-forth communications about her submitted worksheet. However, even crediting Complainant’s assertions that management officials were not truthful, a showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 3 The case was reassigned to a different Administrative Judge on October 18, 2018. 2020003371 4 In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, we find that there is no evidence that the Agency’s actions were motivated by any of Complainant’s protected classes. Complainant stated that she felt that S1’s promotion to his supervisory position was inappropriate, and that he was not a Public Affairs Officer. Complainant asserted that S1’s comments showed that he did not understand the Public Affairs Officer position. ROI at 47, 49. In her appeal brief, Complainant argued that S1 “made ageist and sexist comments indicating discriminatory animus,” and cited to her own deposition as evidence. However, while Complainant testified that she heard that S1 commented that another, unnamed woman “wasn’t pay band 4 material,” she did not explain how this comment was based on sex, and only stated that she “can’t judge” if the comment was discriminatory. Complainant also conceded that a comment that her technical skills were not good did not mention age. Further, Complainant testified that she did not witness S1 make any comments, or act in a way, to demonstrate bias based on age, race, religion, or sex. Complainant Deposition at 17-19, 30, 32. In addition, we note that, while witnesses stated that they believed that S1’s worksheet comments were unfair and inaccurate, they did not attribute them to Complainant’s protected categories. One witness stated that S1’s “negative evaluation” was because Complainant disagreed with S1’s promotion, and another witness thought that S1’s actions were due to a personality conflict and a “personal dislike” based on an assumption that Complainant would be adversarial because S1 got the promotion that Complainant felt she deserved. ROI at 66, 73. Although another witness stated that there may have been age discrimination, he based it on a “gut feeling,” without any evidence. This witness also noted that S1 was “not qualified” to make comments about Complainant’s performance because S1 had supervised Complainant for a short period; lacked Public Affairs experience; and was serving in his first supervisory position. Supplemental ROI. These statements are insufficient to create a genuine issue regarding S1's motivation. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as Complainant’s arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020003371 5 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. 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). 2020003371 6 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. 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 30, 2021 Date