EEOC Appeal 2019005959

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gregg Y.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 2019005959
Agency No. DIA-2018-00091
DECISION
On September 25, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 26, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.
BACKGROUND
On July 11, 2016, Complainant was hired as a Social Cultural Analyst (General Military Analyst)
at the Agency’s United States Southern Command in Doral, Florida, subject to a two-year
probationary period.
On October 4, 2018, Complainant filed the instant formal complaint. Complainant claimed that
he was subjected to harassment/a hostile work environment based on national origin (Cuban
American) and in reprisal for prior EEO activity (current protected activity) when:
a. 	In the Summer/Fall 2017, Complainant’s Branch Chief told him to refrain from writing
and producing on certain topics because his Cuban American heritage influenced his
analysis.
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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b. 	In February 2018, the Major specifically targeted him for a timecard code error and
made him take a remedial timecard class.
c. 	In February 2018, the Major stated that Complainant was forbidden from participating
in another analytic subject because of his Cuban American background made
Complainant biased toward the subject.
d. 	In late February-early March 2018, the Major directed him to stop researching another
issue in coordination with a senior department lead. The Major claimed Complainant
was biased toward performing such research because of his Cuban American
background.
e. 	In March 2018, the Major and Division Chief responded to an approved combat area
deployment 	with 	open 	hostility, 	stating 	Complainant’s 	request, 	national-level
interview, approval and subsequent following of Headquarters HR guidance regarding
the informing of Complainant’s chain of command, would be negatively reflected on
Complainant’s performance assessment within 24 hours of Complainant’s meeting
with the Senior DIA Analyst (“DJ2”), the Major berated Complainant, cursed and
yelled that he and Branch Chief were informed by the DJ2 about “everything
Complainant told him,” including Complainant’s complaints of their ethnic-driven
suppression of analysis and their hostility. The Major declared that Complainant would
“pay a price” for informing the DJ2 and that Branch Chief had taken Complainant’s
statements as “very personal.”
f. 	Approximately mid-April 2018, the Branch Chief ordered Complainant to stop
researching and writing on another issue due to claims that Complainant’s Cuban
American background made Complainant biased on the subject. The Branch Chief and
Major specifically sought to avoid Complainant’s direct participation in special teams
created in response to the circumstances. 	They did allow other teams to take
Complainant’s analysis and present them as their own information to the J2 leadership
without 	Complainant’s 	awareness 	and 	refused 	to 	include 	Complainant 	in 	the
recognition for contributions to this effort.
g. 	During approximately mid-April 2018, the Chief of Transnational Issue Branch (Chief)
told Complainant that in his office that the Branch Chief and Major intended to retaliate
for both Complainant’s deployment approval and Complainant informing the civilian
deputy of Complainant’s chain’s discrimination, hostility and intent to retaliate.
h. 	In May 2018, the Chief isolated himself from Complainant when Complainant asked
him for orders in response to requests for subject matter input from Washington and
other section chiefs, he sometimes responding days later, or not at all.
i. 	In May 2018, during a meeting with the Branch Chief and Chief, the Branch Chief
demanded that Complainant repeat the phrase, “I will never go above the chain of

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command for anything, especially the civilian deputy director for anything.” 	The
Branch Chief, Chief of the Transnational Issue Branch, and Major violated the director-
level-open-door policy for junior analysts in their determination to continue their
discrimination, hostility and retaliatory behavior to avoid responsibility.
j. 	In June 2018, the Branch Chief and Chief refused to acknowledge Complainant’s award
nomination.
k. 	In July 2018, Complainant was terminated during his trial period.
l. 	Within three days of Complainant’s termination on July 5, 2018, Complainant’s offer
of a contractor position was reportedly rescinded after pressure from either the Major
or the Branch Chief in continuation of their discriminatory driven retaliation against
Complainant.
After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative Judge.
In accordance with Complainant’s request, the Agency issued a final decision on August 26, 2019,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form
of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his statutorily protected classes; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
To prove his harassment claims, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. 	Complainant must also prove that the conduct
was taken because of a protected bases – in this case, his national origin and prior protected
activity. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself.
The Major (Korean) stated that during the relevant period, he was Complainant’s first-level
supervisor. Regarding the claim that in February 2018, the Major targeted Complainant for time
card code errors and made him take remedial time card classes, the Major denied targeting

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Complainant. The Major explained that on February 15, 2016, Complainant submitted a time sheet
that included “inaccurate data. On this particular time sheet, he indicated working regular duty
hours through the period, when in fact he was actually not present for 12 hours.”
The Major further noted that there were similar incidents that occurred “which included the pay
period previous to that, and I would say that on any time sheet that he had submitted that did not -
- that wasn’t the standard eight hours - - there were 80 hours of regular time, that there was any
leave or any sort of deviations to the 80 hours, close to 100 percent of the time he submitted
erroneous codes whenever he submitted time sheets.” 	The Major stated that after numerous
occasions in which Complainant inaccurately reported his hours, “I had to sit down and talk to him
and explain to him what the issue was and why it was important to accurately account for all his
hours because not doing so would be a fraudulent act on his part.”
Complainant claimed further that in late February-early March 2018, the Major directed him to
stop researching another issue in coordination with a senior department lead because the Major
claimed Complainant was biased toward performing such research because of his Cuban American
background. However, the Major denied making the statement to Complainant. Specifically, the
Major stated at that time, Complainant was a socio-cultural analyst and he was writing on a topic
which was outside of the branch. He noted that Complainant was trying to write about a political
military situation in another country. The Major stated that he had a talk with Complainant “not
just me but other members in his chain of command, was that basically he needed to stay in his
lane and only work topics that are appropriate to what he’s hired to do.”
The Major explained while the Senior Intelligence Analysist is not in his chain of command, “he
is the senior analyst in my branch. Ultimately he is the one who approves topics. In fact, we have
a pretty stringent and rigid process in which topics get approved…leadership has to approve it.
We have a pre-writing worksheet where the analysts have to write out a worksheet that explains
and justifies why this is important enough to work on. It goes through three levels of review…and
approval - - it has to be approved by three levels of leadership.”
The Major noted that during the relevant period, Complainant requested a deployment to the
Middle East but did not have an approved deployment. 	He noted that the Senior DIA Analyst
(DJ2) denied Complainant’s request based on recommendations from the Chief, Branch Chief, and
the former Division Chief. The Major explained that Complainant’s request was denied because
of Complainant’s “consistent inability to adhere to tradecraft standards in his work…we did not
flatly say that he can never go. The official recommendation was, not this time, but we recommend
deferring to a later date when he’s ready. We just simply didn’t think that he had the maturity or
the professional, I guess, competence yet to deploy at this time, but we recommended that he go
at a later date once he was ready.” Moreover, the Major stated that he talked to Complainant “in
a stern way, but I did not curse at him. I did not berate him.”
The record reflects that both Major and the Branch Chief asserted that they did not tell the Chief
that they planned to retaliate against Complainant for his deployment approval and speaking to
DJ2.

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With respect to Complainant’s allegation that the Branch Chief and Chief refused to acknowledge
Complainant’s award nomination, the Major asserted that Complainant was not nominated for an
award and did not receive any awards in 2018.
Regarding Complainant’s allegation that in the Summer/Fall 2017, the Branch Chief she told him
to refrain from writing and producing on certain topics because his Cuban American heritage
influenced his analysis, the Branch Chief (Hispanic/Puerto Rican) claimed “absolutely I never tell
people to refrain on writing or producing on X, Y, Z topics… [T]here’s a production plan from top
down and we produce based on what our big boss is asking. We work for a four-star general, and
then after that we work for the one-star general, which is the director of intelligence, and our
production is driven by those requirements.
Further, the Branch Chief stated that she explained to Complainant and his response was “he would
look at you with a straight face like he really didn’t know what you were talking about, and then
after that, basically he would say, ‘okay, I got it. I got it. I’ll fix it,’ but he never did. It was a
recurrent issue.”
With respect to Complainant’s allegation that approximately mid-April 2018, the Branch Chief
ordered Complainant to stop researching and writing on another issue due to claims that
Complainant’s Cuban American background made Complainant biased on the subject, the Branch
Chief denied asking Complainant to stop researching or writing because of his Cuban American
background. She explained that when the division works on a subject, “we have subject matter
experts in different areas throughout the division, so, let’s say that we’re working on a problem in
a country, which by the way, it wasn’t Cuba, and we are supposed to go to the other teams that are
working the same subject and coordinate with them before we go to represent our directorate with
senior-level people or senior-level groups. What happened was [Complainant] circumvented the
teams within the division and went directly with another division to brief seniors in other agencies,
i.e. NSA and CIA, on a specific topic without even coordinating with the team that was, that had
responsibility for that subject.”
The Branch Chief further stated that she called Complainant and asked him why he was contacting
brief seniors in other agencies and explained “we have memos for records on that and there were,
like, three people in the room when I inquire and they’re documented in the memo as well.” She
noted that on May 8, 2018, she conducted a meeting and told Complainant that she would like “to
see my division as a family. If we have an issue we have to discuss it together. Why can’t you
tell us how can we assist?’ because he was not performing. So it’s like what can we do? Because
I felt, I really felt very frustrated…he would look at me and he would just look at me like he was
not understanding what I was saying.”
The Branch Chief stated that following Complainant’s termination, a named company contacted
her stating they were considering Complainant for employment and “they asked me whether I
would recommend him for employment, and my answer was ‘no, I would not recommend him,
because it was for an analyst job.’” Moreover, the Branch Chief stated that Complainant’s national
origin and prior protected activity were not factors for her comments to the company.

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The Chief of the Transnational Issue Branch (Puerto Rican), also Complainant’s second-level
supervisor, stated that in regard to Complainant’s allegation that in May 2018, the Chief isolated
himself from Complainant when Complainant asked him for orders in response to requests for
subject matter input from Washington and other section chiefs, he sometimes responding days
later, or not at all, the Chief denied the claim. 	Specifically, the Chief asserted that he does not
isolate himself from anybody and that his door “is always open unless I’m having a private meeting
like this one or discussing other matters that are not necessarily privy to walking-by ears. There’s
a lot of movement going on around here at any given time.”
Further, the Chief explained that his job is to develop and train and “that was my goal with
[Complainant] and everybody else. 	I have many times told [Complainant] ‘I believe in you. 	I
think you have the capability to one time lead this team, but you just need to work on certain
things.’ I tried to push for that. 	In fact, many times, he didn’t meet the mark because he didn’t
produce on time. In fact, over the last year, he might have done three products total when you’re
supposed to do three or four products a month, if not more.”
The Director of Office of Human Resources was the deciding official to terminate Complainant
during his probationary period for poor performance and failure to follow instructions. The record
contains a copy of Complainant’s Notice of Termination During Trial Period dated July 5, 2018
in which the Director placed Complainant on notice that he would be removed during his trial
period. In the July 5, 2018 Notice of Termination letter, the Director noted “despite management’s
efforts to address [Complainant’s] performance and misconduct, you have not demonstrated
improvement against the standards that clearly and repeatedly communicated to you. Your actions
coupled with your failure to sufficiently perform the duties of your position, make you unfit for
continued employment with DIA. 	For these reasons, I believe it is in the best interest of this
Agency that I terminate your appointment with DIA and the Federal service immediately upon
your receipt of this memorandum.”
In sum, Complainant failed to produce evidence to prove, by a preponderance of the evidence, that
he was the victim of unlawful employment discrimination by establishing that any of the actions
taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service,
EEOC Appeal No. 01982923 (Sept. 21, 2000). 	Beyond his own bare assertions, there was no
evidence indicating his national origin or retaliatory animus played any role in the events at issue.
CONCLUSION
We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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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
June 25, 2020
Date