[Redacted], Wilbur W., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Mar 24, 2022

Appeal No. 2020004124 (E.E.O.C. Mar. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilbur W.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020004124 Hearing No. 471-2017-00034X Agency No. DOT-2016-26647-FAA-04 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 29, 2020, final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Air Traffic Control Specialist at the Agency’s Air Traffic Control Center (ATCT) in Lansing, Michigan. On March 11, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Asian), disability (diabetes), and reprisal for prior protected EEO activity when: 1. Shortly after he reported to the facility in August 2014, his protected medical information was spread throughout the facility causing inappropriate questions and conversations about his medical condition. 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. 2020004124 2 2. From the beginning of his tenure at the Lansing ATCT, he was not receiving his training team notes and plans in a timely manner. 3. He was subjected to inappropriate conversation and racially charged comments by coworkers and managers, including Asian pornography and Asian sex. 4. He was denied the opportunity to make changes to his training team notes and plans. 5. Management tried to contain his training team to only a few coworkers even after he pointed out that he was receiving positive and good training reports from individuals outside his direct training team. 6. During a training team meeting on December 11, 2014, trainers yelled and swore at him which brought him to tears in front of management after he suggested a training team change. 7. On March 27, 2015, his new manager caused him embarrassment and biased his new instructors by needlessly bringing up the past; management changed his assigned start of shift on Saturday mornings saying it was for the support of extremely good and productive traffic for training; training did not get conducted during this time moving forward; record of this meeting was not seen in his training folder leading him to believe management destroyed the government documents, although he maintained copies for his own record. 8. From the end of March to the middle of May 2015, he was not able to train during his Saturday morning shift. 9. Beginning in July 2015, management started to get appropriate signatures from him and his trainers, however, he did not receive documentation in a timely matter; it would be days, weeks even months later, which highlighted management's disinterest in conducting his training properly. 10. After a November 9, 2015, Training Review Board recommendation to terminate his training and, on November 20, 2015, he was issued a proposed termination of training letter. 11. Without consideration of his response to the proposed termination of training, on December 5, 2015, his training at Lansing ATCT was terminated. 12. On December 10, 2015, the National Employee Services Team (NEST) delivered its findings with a recommendation not to retain him; however, that decision has since been rescinded. 2020004124 3 13. On January 8, 2016, he was issued a Notice of Proposed Removal, which has since been rescinded. 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. With respect to claims 2, 6-9, the AJ found that Complainant did not show that any of these matters were linked to his race or disability. In so finding, the AJ noted, for example, that there was no evidence that anyone outside of Complainant’s protected classes was treated more favorably than him. With respect to claim 3, the AJ noted that upon learning of Complainant’s allegations, the Agency initiated an investigation conducting eight interviews of employees. But the Agency’s investigation found no evidence to corroborate Complainant’s allegations. The AJ also found, regarding claims 1, 4, 5, 10-13, that the Agency articulate legitimate, nondiscriminatory reasons for its actions, which Complainant failed to show were pretextual. For example, the AJ noted, regarding claim 1, that Complainant’s special medical certificate required the Agency to put certain safeguards in place due to Complainant’s diabetes, so they would be able to spot symptoms of low blood sugar and know how to respond in case of emergency. In addressing claim 4, the AJ observed that Complainant did in fact make multiple comments on documentation for many sessions and skill checks. With respect to claim 5, the AJ observed that limiting training team members was commonly done especially for employees, like Complainant, who struggled to progress in performance. As for claims 10-13, the AJ observed that Complainant made the incorrect call sign 13 times during a skills check, among other things, and therefore his performance as a tower team member was at an unacceptable level. The AJ ultimately found no evidence of discriminatory or retaliatory animus with respect to any of the Agency’s alleged actions. 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, Aug. 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). 2020004124 4 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 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.2 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 the parties’ 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. 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). 2 With respect to Complainant’s contention that the AJ erred by rejecting his response to the Agency’s motion for Summary Judgement as untimely filed, we note that AJs have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109(e). We note the AJ determined that Complainant’s response was due on September 10, 2019, but Complainant did not file his response until September 16, 2019. Upon review of the record, we find no evidence that the AJ abused her discretion here. 2020004124 5 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. 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. 2020004124 6 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belinda K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004275 Hearing No. 520-2019-00615X Agency No. 200H-0518-2018105754 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s June 22, 2020, final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed as a Registered Nurse at the Agency’s Edith Nourse Rogers Memorial Hospital in Bedford, Massachusetts. On November 19, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Black), and reprisal for prior protected EEO activity when: 1. On July 27, 2018 she was verbally abused by co-worker (CW) who pointed her finger in her face, told her she belonged in “the shit hole,” said to her “[You nursing aids are] nothing but shit” and referred to her as a “Negro”; 2. On July 27, 2018, CW authored a Report of Contact filled with untruths in an effort to get her removed; 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. 2020004275 2 3. On July 30, 2018, the Agency took action to remove her from the unit and assign her to Hospital Education while they conducted an investigation into her alleged actions but did not do the same with CW; and 4. On August 21, 2018, she was removed from Federal Service. 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ specifically found, regarding claim 1, that Complainant did not establish that CW made the comments as alleged. The AJ specifically observed that no witnesses mentioned CW calling Complainant “the shit hole,” or “Negro,” or even yelling at Complainant. The AJ noted that assuming, without finding that the comments occurred as alleged, Complainant and CW were separated from each other thereafter. In addressing claim 2, the AJ observed that CW had no knowledge of Complainant’s EEO activity. Regarding claim 3, the AJ noted that there were reports that Complainant had abandoned her post and there was simply nothing to support Complainant’s allegations against CW. In addressing claim 4, the AJ observed that Complainant signed a Last Change Agreement (LCA) on May 18, 2018, agreeing that she would adhere to the standards of conduct as described in Agency policy. The AJ found that Complainant violated the LCA when she disregarded the Charge Nurse and left the Unit. The AJ observed that Complainant was out of her assigned area again without permission on July 29, 2018. The AJ further observed that Complainant argued with the Charge Nurse, who simply reminded Complainant of her assignment. But Complainant then walked away from the Charge Nurse while she was talking. The AJ found no evidence that the Agency was motivated by discriminatory or retaliatory animus in removing Complainant from her position. 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 Emp’t Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Chap. 9, § VI.B. (as revised, Aug. 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). 2020004275 3 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 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. 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 the parties’ 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. 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. 2020004275 4 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. 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vern R.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020004521 Hearing No. 430-2020-00148X Agency No. 19-42158-01941 DECISION On August 7, 2020, 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 April 3, 2020, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant (a 51-year old Caucasian white male) worked as a Nuclear Mechanical Inspector, WL-4701-14 at the Agency’s Norfolk Naval Shipyard in Portsmouth, Virginia. The Agency posted a Nuclear Mechanical Inspector Supervisor, WS-5301-14, position under Request for Personal Action number 886253. Complainant and three other applicants applied and qualified for the position. 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 2020004521 The Agency appointed a three-member Selection Panel (the Panel) to review and evaluate the resumes of the applicants, select applicants for interviews, conduct and score the interviews, and make a hiring recommendation. The Panel made its recommendation to a Selecting Official. IF at 173-174, 181, 199-200, 215. After the resume review and ratings were compiled, Complainant was second out of the four applicants, with an average score of 42.7. The top ranked applicant after the resume review was Selectee (Caucasian, white, Male, age 50+), with an average score of 52.7. Therefore, Complainant and Selectee were offered interviews. In the interviews, the applicants were asked the same basic questions and the Panel members scored their responses. After weighing and combining the average resume scores and average interview scores for each interviewee, Selectee’s total score was 80.92, and Complainant’s was 56.42. Consequently, the Panel unanimously recommended Selectee to the Selecting Official. The Selecting Official reviewed the Panel’s recommendation and supporting documentation and selected Selectee for the Position. IF at 108, 110, 174-179. Complainant believed that his non-selection was based on his protected bases. He asserted that he was more qualified than Selectee due to his “time in the code,” (or length of service) numerous job assignments, and night shift experience, among other things. IF at 168-170; see Complainant’s and Selectee’s Resumes, IF at 120-128. The Selecting Official and the Panel asserted that time-in-code was not among the selection criteria. IF at 177, 185, 202. On June 5, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), and age (51) when on January 25, 2019, the Branch Head of the Waterfront Office notified Complainant that he was not selected for the position of Nuclear Mechanical Inspector Supervisor, Request for Personal Action number 886253. IF at 68. The Agency accepted the claim for investigation. The Agency however dismissed five additional claims pursuant to 29 C.F.R. §1614.107(a)(2) for untimely counselor contact.2 2 The dismissed claims are: (a) Between December 2014 and October 2016, management did not select Complainant for a Nuclear Inspector Supervisor, even though they had continuously referred to Complainant’s experience and time as a Nuclear Inspector and Work Leader, implying Complainant’s selection; (b) In November 2016, Complainant was not selected for the Nuclear Inspector Supervisor position, certificate number EN 16 BPE-31884S0, and instead, a female with less experience than Complainant was selected; (c) On February 28, 2017, Complainant was not selected for the Receipt Inspector Supervisor position, certificate number EN-16-BPE-31884S0, and instead, a female with less experience than Complainant was selected; (d) In September 2017, the Division Head stated that old timers should “move on” during the “Team of Winners” training that he presented to Code 139; and (e) In 2018, management 3 2020004521 Included in the record is an August 29, 2019, letter which instructed Complainant to notify the Agency if he believed that the accepted claim was not correctly identified. Complainant’s notification was to be provided in writing within seven calendar days of his receipt of the August 29, 2019, letter. Complainant’s notification was also to specify why he believed the claim was not correctly identified. The Agency stated in its letter that if Complainant did not reply, the Agency would consider the “claims as stated above” to be correct. According to the Agency, Complainant did not contact the Agency to contest the accepted claim or assert that he also had a hostile work environment claim “for his complaint.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The October 29, 2019 ROI only listed one accepted claim. The dismissed claims were not listed. Complainant challenge the identification of the one claim or how it was stated in the ROI. Complainant timely requested a hearing. On December 26, 2019, the assigned AJ issued an Acknowledgement Order for the one claim at issue. The Acknowledgement Order informed Complainant that he had 30 days to notify the Commission if he contested the dismissal of any claims that the Agency had dismissed in the complaint. The Acknowledgement Order also stated that if Complainant failed to oppose in writing the dismissal of a claim within the 30-day comment period, the opportunity to have the dismissal reviewed “shall be deemed waived.” Complainant did not notify the AJ of any dismissal of any hostile work environment claim that he felt should have been investigated as part of the one accepted claim. Also, at the Initial Conference on February 19, 2020, both Complainant and his Representative, the Agency asserted, “affirmatively confirmed that the claim as stated was correct and was Complainant’s sole claim at issue in this case.” On February 27, 2020, the AJ issued a “Notice of Intent to Issue Decision Without a Hearing (NOI), ordering the parties to respond no later than March 14, 2020. Complainant and his representative failed to respond or request an extension within the requisite period. The AJ determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on March 24, 2020. The AJ found that Complainant could not prove a prima facie case of discrimination because Selectee, like Complainant, was a white, Caucasian, male over the age of 50. detailed a named employee, WS-5301-14, Nuclear Mechanical Inspector Supervisor, to the Nuclear Mechanical Inspector Supervisor position instead of having the position advertised prior to the last supervisor’s retirement. Complainant did not contest the dismissal of the listed claims for the reasons stated by the Agency. Therefore, we AFFIRM the Agency’s dismissal of the listed claims and will not further address them in this decision. 4 2020004521 The AJ also stated that even assuming, arguendo, that Complainant could establish a prima facie case of discrimination, the Agency had articulated a legitimate, non-discriminatory reason for its selection of Selectee. The Agency had explained that based on the detailed process used for the selection, Selectee, not Complainant, was the best qualified candidate because the resume and interview grading resulted in a numerically higher score for Selectee than Complainant. The Agency explained that based on the average resume scores and average interview scores, Selectee’s total score of 80.92 was higher than Complainant’s score of 56.42. Complainant was also weak in key areas specific to meeting the needs of the position. With respect to his resume, Complainant rated lower than selectee in technical control and oversight, planning, scheduling, manning, computer experience and education. With respect to the interview, Complainant rated lower than selectee in his self-assessment of why he would make the best supervisor. Complainant was also weak in determining at least one improvement for his shift assignment to encourage other inspectors, and weak in describing the mentoring system in place for the inspectors. The AJ stated that in comparing Complainant’s qualifications to those of Selectee, the disparities are not “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen Complainant over selectee for the job in question.” The AJ also found that Complainant could not prove pretext, explaining that Complainant’s only evidence of pretext appeared to be: (1) the fact that he had more time-in-code with the Agency; and (2) his subjective belief that he was more qualified. However, the AJ stated, given the makeup of the Selection Committee, the process the Selection Committee used, the consistency of the scores, the qualities the Selection Committee was seeking, and the records of its decision making contained in the record, Complainant’s “evidence” could not prove that the Agency’s articulated legitimate, non-discriminatory reason for its selection of Selectee was a pretext for discrimination on the basis of race, color, sex, or age. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant states that the AJ erred in the “constructive dismissal” of the harassment portion of his case. He asserts that the AJ’s decision does not identify or include a “Decision Dismissing” the hostile work environment harassment portion of the Complaint. He also lists the additional five claims previously dismissed by the Agency. Complainant states that the AJ did not address the non-selection claim under “the framework of a hostile work environment claim.” Complainant asserts that the harassment portion was improperly dismissed. Complainant requests that the Commission “deny and reverse” the Final Order and find in his favor or, in the alternative, remand this matter for an AJ hearing. 5 2020004521 On appeal, the Agency reiterates its reasons for Complainant’s non-selection. The Agency asserts that Complainant never raised the issue of a missing hostile work environment claim nor attempted to contest the partial dismissal of his claim. The Agency also argues that Complainant had multiple chances to alert both the Agency and the Commission of his alleged missing hostile work environment claim. He did not take advantage of those opportunities. The Agency asserts that Complainant cannot show that he had a viable hostile work environment claim that the AJ improperly or constructively dismissed. The Agency requests that the Commission dismiss Complainant’s appeal and affirm its final order. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See Id. at Chapter 9, § VI.A. (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 Dismissal of Hostile Work Environment Claim Complainant contends that the AJ improperly dismissed the hostile work environment portion of his claim. However, the record does not reflect that Complainant raised hostile work environment harassment as a portion of his complaint. More importantly, if Complainant objected to how the one accepted claim was framed by the Agency in its August 29, 2019 letter of acceptance/dismissal, he should have contested the framing at that time, prior to the investigation. See Owen W. v. Dep’t of Veterans Affairs, Agency Request No. 2020002215 (June 2, 2020) (affirming initial decision not to review dismissed claim “because the record clearly shows that Complainant did not challenge the Agency’s framing of his complaint.”) The record also reflects that Complainant had multiple opportunities to challenge the framing of his complaint after the investigation was completed. 6 2020004521 These include after the October 29, 2019 ROI was issued; in response to the AJ’s December 26, 2019, Acknowledgment Order; and at the February 19, 2020, Initial Conference. Complainant failed to take advantage of these opportunities. Rather, both he and his Representative confirmed to the AJ that the non-selection claim was correctly stated; and that it was Complainant’s only claim. Therefore, Complainant’s appeal argument fails. AJ’s Issuance of a Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor. Disparate Treatment In this case, while the AJ assumed a prima facie case and determined that Complainant did not establish pretext with respect to the non-selection, we find that Complainant could not even establish a prima facie case because Selectee, like Complainant, was a white, Caucasian, male over the age of 50. To prove a prima facie case of discrimination regarding a non-selection, a complainant must show that: (1) s/he is a member of a protected group; (2) the agency solicited applications for vacancies for the position at issue; (3) s/he applied for the vacancy and was qualified; (4) despite complainant’s qualifications, applicant(s) outside his protected group were instead selected. Cain v. Dep’t of the Army, EEOC Appeal No. 0120072018 (Jul. 10, 2007). 7 2020004521 There is not a prima facie case to be found here because Selectee belongs to all the same protected classes as Complainant. Therefore, Complainant does not prevail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s Final Action adopting it. 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). 8 2020004521 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. 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, Director Office of Federal Operations March 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luciano B.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020004548 Agency No. 2019-28451-FAA-05 DECISION On August 12, 2020, 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 July 14, 2020, final decision concerning his 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 accepts the appeal in accordance with 29 C.F.R. § 1614.405. At the time of events giving rise to this complaint, Complainant worked as an AT-2152-FJ Operations Supervisor at the Agency’s Air Traffic Control Tower in San Juan, Puerto Rico. On October 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on July 1, 2019, he learned that he was not selected for the AT-2152-LJ Operations Supervisor position at the Fort Worth, Texas Air Route Traffic Control Center (ARTCC) advertised under vacancy announcement number ASW-ATO-19-KN098-60922, and the San Juan Air Traffic Manager informed Complainant that the Fort Worth District Manager of Operations retracted Complainant’s selection for the position. 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. 2020004548 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, 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 him to discrimination as alleged. The instant appeal followed. 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”). Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to disparate treatment based on race, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory explanation for his nonselection is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The Agency’s legitimate, nondiscriminatory explanation for not selecting Complainant was that he did not have radar experience, as the ARTCC needed an Operations Supervisor who could start as soon as possible without requiring radar training. Although the vacancy announcement did not state radar experience was required, we agree with the final decision that Complainant did not establish that his qualifications were plainly superior to those of the selectees, who all had radar experience. On appeal, Complainant contends that the Fort Worth District has a history of questionable hiring practices, citing past nonselections and the lack of African-American or Black Operations Supervisors at the ARTCC. However, we conclude that the final decision correctly determined that Complainant did not establish pretext by preponderant evidence in the record. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision 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 decision finding no discrimination. 2020004548 3 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). 2020004548 4 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Denese G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020004579 Hearing No. 480-2019-00014X Agency No. 6Z-000-0023-15 DECISION 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 July 13, 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 Supervisor Business Mail Entry (EAS-19)2 at the Agency’s Santa Ana District in Santa Ana, California. On December 9, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (54) 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. 2 Due to a reduction-in-force, Complainant would save pay at the EAS-19 level for two years, before being reduced to the EAS-17 level. Report of Investigation at 106. 2020004579 2 1. on July 13, 2015, Complainant was not selected for three different Revenue Assurance Analyst (RAA) positions (EAS-19), one for Headquarters and two in the Pacific Area; and 2. on an unspecified date, Complainant was not selected for another RAA position (EAS- 19) for Headquarters after the position became vacant. Complainant also alleged discrimination based on sex and age, and in reprisal for filing the instant EEO complaint, when: 3. on January 10, 2016, Complainant learned that she received a zero percent increase for her fiscal year 2015 Pay for Performance (PFP). After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC 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. For claim 1, the AJ assumed a prima facie case of discrimination based on sex and age, and she found that the Agency explained that two selectees, (S1) (male) and (S2) (female), were selected based on their higher scores and better interviews. While the third selectee (S3) (male) and Complainant received the same score, a Manager Revenue Assurance (MRA), who was the selecting official, chose S3 because he served as a former Financial Testing Compliance Manager and had demonstrated success in a higher-level position with increased responsibilities. MRA added that S3 came across as more personable and team-oriented, while Complainant was described as a “bit of a bully” and difficult to work with. The AJ determined that the Agency’s reasons for its selections were sufficiently clear to give Complainant the opportunity to establish that its reasons were a pretext for discrimination based on sex and/or age, and that there were material facts in dispute, but Complainant did not meet this burden. The AJ noted that Complainant argued that the subjective criteria was not included in the job description and was contrary to the Agency’s personnel policies, but she found that the use of subjective criteria does not establish that a particular selection was based on discriminatory motives. The AJ determined that Complainant failed to proffer evidence to establish an unlawful motive in the selection process and, as such, the AJ would not undermine the Agency’s selection. The AJ also found that Complainant did not establish that her qualifications for the RAA position were so plainly superior to the selectees’ qualifications that the Agency’s reasons could be found to be a pretext for discrimination. Complainant also asserted that MRA commented that S3 was “going to be a father and needed a job” was evidence of pretext. However, the AJ found that, assuming the comment was made, without more, it was insufficient to establish animus based on sex and/or age. 2020004579 3 Rather, at best, the comment evidences discrimination based on parental status, which is not a protected basis over which the Commission has jurisdiction. The AJ also found that MRA’s statement that Complainant was a “bit of a bully,” does not evidence animus such that it could prove an unlawful motive for Complainant’s non-selection. For claim 2, the AJ noted that Complainant did not proffer any evidence to establish that she applied for the RAA position in question and only alleged that she was “prevented” from applying from the position because it would have required her to relocate. Regarding Complainant’s allegation that MRA engaged in a pattern or practice of selecting younger and/or male applicants, the AJ noted that Complainant must show that the Agency “regularly and purposefully” treated members of a protected group less favorably than individuals not in that group. Complainant alleged that, of the eighteen Level 19 RAA positions, the Agency selected approximately fourteen male employees (78%) and four female employees (22%). The Agency averred that 11 RAA positions were filled by veterans who had preference for selection. Of the remaining RAA positions, three candidates (two male and one female selectees from claim 1) were selected because they scored higher than Complainant and/or demonstrated success at higher-level positions than Complainant. Even assuming, arguendo, that the remaining positions were filled by male candidates, the AJ determined that such a statistical sample is too small to indicate a pattern or practice of unlawful discrimination. Further, Complainant had not shown that considerations of sex and/or age motivated the selections. For claim 3, the AJ found that Complainant did not establish a prima facie case of discrimination. The AJ noted that Complainant received a zero percent PFP increase as a result of an error, and that the Agency previously instructed Complainant to fix the issue, but she failed to follow directions. Further, Complainant did not bring the error to the Agency’s attention until January 2016, and as the PFP increases had already been determined, it was too late to make any changes. Complainant alleged that MRA intentionally failed to override the system “glitch” and issue a manual payment to her, as evidenced by repeated negative statements about Complainant after she filed her EEO complaint. However, the AJ did not find the cited statements to be “negative”; rather, they generally reflected MRA’s opinion that Complainant was at fault for the error resulting in her zero percent PFP increase. Even assuming, arguendo, that the statements were “negative,” the statements did not prove any retaliatory animus. The AJ concluded that Complainant did not establish that there are material facts in dispute for her claims that the Agency discriminated against her based on her sex or age, or in retaliation for her EEO activity. As such, the AJ granted the Agency’s Motion for Summary Judgment. 2020004579 4 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.3 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, Aug. 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. Through her attorney, Complainant argues that there are material facts in dispute. For example, whether MRS’s reasons for selecting S3 were appropriate according to the Agency’s own standards and whether the Agency’s interview process was structured to disfavor female candidates. However, Complainant did not show a genuine dispute of any material fact based on the evidence, and she simply contends that the Agency’s actions were not appropriate. Mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), req. for recon. denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Complainant also argues that the AJ erred in weighing the facts and not making inferences in her favor, but we find that the AJ made inferences in Complainant’s favor. As an example, we note that MRA denied making the statement that S3 needed the job because he was about to become a parent, and the AJ credited Complainant’s allegation as true but determined that such statement would indicate a bias based on parental status, which was not under the Commission’s jurisdiction. ROI at 223. 3 Complainant’s attorney also sent a request for the Commission to draw an adverse inference because the Agency did not attach a copy of the complaint file to its letter to Complainant informing her that it had submitted the file to the Commission. We decline to grant Complainant’s request. 2020004579 5 Complainant contends that the use of “father” was a “code word” to evidence discrimination based on sex. However, we find that Complainant’s inconsistent evidence undermines MRA’s use of the term “father.” In her formal EEO complaint and in her affidavit, Complainant claimed that MRA allegedly made a comment about S3 being a “parent,” prior to changing her allegation that MRA commented that S3 was a “father.” We also note that, in her pre-complaint counseling form, Complainant stated that S3 informed her that he contacted MRA to advise her that he had a child on the way, but Complainant did not initially declare that MRA made the alleged statement about S3’s status as a parent and/or father. ROI at 18, 7, 148. Complainant Declaration at 1. Complainant also alleges that the use of “bully” thinly disguises MRS’s bias towards Complainant as a female, but we find this is purely speculative. Complainant asserts that she provided considerable demographic data in support of her claim that there was a pattern and practice by Agency in its selection of RAAs, but the AJ weighed this evidence and did not draw favorable inferences from it, and instead, demonstrated her disbelief by disregarding it. However, we find that the AJ did not “disregard” this evidence; rather, she analyzed the data and concluded that the demographic data did not prove discrimination. Complainant argues that the AJ erred in considering the statistical data alone, and that MRA made statements that evidenced discriminatory animus in hiring S3 because he was a father; calling Complainant a bully; and “disparaging” her frequently in her EEO affidavit and emails. However, the evidence does not support Complainant’s contention that MRA harbored a discriminatory animus because there is no connection between MRA’s actions and any of Complainant’s protected classes. Complainant also argues that the AJ made credibility determinations about seven material facts. For example, Complainant stated that MRA was a manager who had the authority to manually correct a payroll error but failed to do so. However, the record shows that, when Complainant contacted Human Resources in January 2016, she was informed that the system was closed for fiscal year 2015 and no changes could be made. ROI at 546-7. We find that Complainant makes unfounded contentions that the AJ erred, or Complainant merely disagrees with the AJ’s findings, but she did not meet her burden to show that there was a genuine dispute of material facts or a need for credibility determinations. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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. 2020004579 6 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). 2020004579 7 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luigi B.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2020004652 Agency No. 63-2019-00423D DECISION On August 21, 2020, 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 July 22, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 Temporary Enumerator/Lister at the Agency’s Field Division facility in Kansas City, Missouri. Complainant began his employment on July 27, 2019 and was terminated effective August 20, 2019. Complainant’s third-level supervisor (Geographer) stated that he was made aware by the Acting Area Field Manager that a female employee (Employee 1) claimed that Complainant sexually harassed her. Report of Investigation (ROI) at 50. In addition, a second female employee (Employee 2) complained about Complainant sexually harassing her as well. Id. Based on statements and pictures of text messages provided by Employees 1 and 2, Geographer made the decision to terminate Complainant. Id. 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 2020004652 On October 3, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical osteoarthritis of the hip) and reprisal for requesting a reasonable accommodation under Section 501 of the Rehabilitation Act of 1973 when, on August 20, 2019, Complainant was terminated. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, 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 him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency’s decision was against the “manifest weight” of the evidence and that he proved his case by clear and convincing evidence. Among other things, Complainant asserts that he was discouraged from requesting a reasonable accommodation and was asked why Complainant needed to request reasonable accommodation when his disability was obvious. Complainant also denies engaging in misconduct involving alleged sexual harassment toward Employees 1 and 2 which resulted in his termination. Complainant states that the Commission should conclude that Complainant’s termination was based on retaliation, and that any findings to the contrary by the Agency are inconsistent with the “preponderance of the facts.” Complainant requests that the Commission overturn the FAD and find in his favor. The Agency did not submit an Appeal Statement. STANDARD OF REVIEW 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 Disparate Treatment 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). 3 2020004652 For Complainant to prevail, he or she must first establish a prima facie 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. Affairs 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). Here, the Agency terminated Complainant effective August 24, 2019. ROI at 67. Regarding the Agency’s legitimate, nondiscriminatory reason for its actions, the Agency asserted that Complainant had engaged in misconduct. Included in the administrative file is an August 27, 2019, email from Acting Area Field Manager to Geographer regarding Complainant’s behavior. Geographer averred that he was notified that Employee 1 made a claim of sexual harassment against Complainant. Employee 1 had complained that during a training class, Complainant kept putting his hand on her shoulder and when she stepped away to remove his hand, he continued to move forward and kept trying to put his hand on her shoulder. ROI at 53, 57, and 70. She also reported that Complainant made inappropriate and suggestive comments that made her feel uncomfortable. ROI at 53, 70. Geographer stated he received pictures of some text messages Complainant sent to Employee 1, which he felt were inappropriate. For example, “When r u supposed to tease me next?” “I got paid if u need any.” ROI at 74-5. Employee 2 also complained that Complainant made her feel extremely uncomfortable during Complainant’s orientation training class when Complainant repeatedly tried to derail the class and tried to get Employee 2 to come over to him. ROI at 72. She also reported that Complainant’s aggressive conduct made her feel extremely uncomfortable and that she felt the need to block Complainant after his repeated calls. ROI at 60-1, and 72. Employee 2 asserted that she felt unnerved by Complainant’s repeated calls, and that Complainant was yelling on a call he made to her, asking her to become his supervisor. ROI at 56, 60, 72. Geographer stated that based on this information, he recommended Complainant be terminated. Upon review, we find that the Agency has proffered a legitimate, non-discriminatory reason for Complainant’s termination. We next turn to Complainant to show pretext. 4 2020004652 Besides generally denying the alleged misconduct, Complainant presented no evidence to refute the claims of misconduct. Complainant argued that his termination was based on his reasonable accommodation request. ROI at 57, 69, 72-3. On or about August 3, 2019, Complainant verbally requested reasonable accommodation. He submitted medical documentation regarding his request on August 20, 2019. ROI at 69. The next day, Complainant was told that he was terminated based on complaints from Employees 1 and 2. Complainant also asserted that the Agency manufactured performance deficiencies. The Commission has long held that, where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. See Zachary K. v. Dep’t of the Interior, EEOC Appeal No. 0120107097 (Mar. 26, 2019). Here, Complainant has presented no evidence to show that his termination was based on any protected category. Therefore, Complainant’s claims fail. 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 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. 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, 5 2020004652 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. 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. 6 2020004652 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristen T.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004985 Agency No. ARHOOD19APR01232 DECISION On September 5, 2020, 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 August 17, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 Clinical Social Worker, GS-12, at the Agency’s Carl R. Darnell Army Medical Clinic in Fort Hood, Texas. Complainant was diagnosed with multiple sclerosis, Sarcoidosis, and Parkinson’s. She asserted that these are permanent physical impairments. Complainant stated that the conditions cause pain and exhaustion and affected the quality of her everyday activities. Investigative File (IF) at 220. Complainant twice requested reasonable accommodation in the form of a hardship transfer to Fort Bragg. The first request was submitted on April 30, 2018. The second request was made on March 19, 2019. IF at 120-21; 336-37. 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 2020004985 Complainant also requested a 20% reduction in workload, the opportunity to attend doctor’s appointments, and the ability to take time off as needed for illness. IF at 120-21, 118-19. On April 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. Since March 2019, Supervisor 1 has not allowed Complainant to complete her job functions; 2. As of April 2019, Complainant’s approved Reasonable Accommodation has not been implemented; 3. On April 1, 2019, Supervisor 1 told Complainant that she needed to medically retire; and 4. On April 17, 2019, Supervisor 1 issued Complainant a Notice of Abeyance of clinical privileges. The Agency accepted the complaint for investigation. 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 timely requested a hearing but subsequently withdrew her request. Consequently, 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. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the AJ in effect intimidated her. The AJ sent Complainant an email during the prehearing stage stating that Complainant wanted to cancel the hearing. Complainant also argues that the FAD should be overturned because while the Agency “acknowledged” that her claims were based on hostile work environment harassment, it analyzed each alleged discriminatory act separately rather than as a whole. Therefore, Complainant argues, the Agency applied the wrong legal standard in its analysis. Among other things, Complainant also reiterates her allegations, arguing that the alleged harassment would not occur, and she would not have “been taken advantage of,” but for her disability. For example, Complainant cites to her need to request reasonable accommodation, mistakes she made in performing her job, and a coworker’s (Coworker) statements that he was able to bar Supervisor 1 from “barging” into his office which, Complainant asserts, she was unable to do. Complainant asserts that she established a prima facie case of disability-based harassment; and that the Agency’s FAD was improper. 3 2020004985 Complainant also argues that the Agency failed to meet its burden because it did not articulate a legitimate, nondiscriminatory reason for its actions; and failed to provide at least some evidence in support of those reasons to allow Complainant to show pretext. Complainant requests that the FAD be overturned. On appeal, the Agency reiterates its FAD explanations. The Agency asserts that Supervisor 1 was performing his duties when he worked actively with Complainant, met with her regularly regarding her work performance, and tried to accommodate her in the workplace within the limits of ensuring her essential job functions were completed. The Agency also states that Complainant’s disagreement with Supervisor 1’s business decisions does not prove that he acted because of a discriminatory motive. The Agency asserts that the evidence sufficiently established that it did not subject Complainant to a hostile work environment based on her protected classes. The Agency asserts that its FAD correctly applied the laws governing hostile work environment harassment to Complainant's case. The Agency requests that Complainant's appeal be denied. STANDARD OF REVIEW 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 Chap. 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 Preliminary Matter On appeal, Complainant asserts that the AJ in effect intimidated her. The AJ sent Complainant an email during the prehearing stage stating that Complainant wanted to cancel the hearing. We find that Complainant’s statements are unsubstantiated by record evidence as Complainant failed to explain in any way how she felt intimidated. 4 2020004985 Disability Accommodation - Claim 2 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 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. Complainant requested reasonable accommodation in the form of a 20 percent workload reduction, and a transfer to Fort Bragg on grounds of medical hardship. The record indicates that Complainant’s workload reduction request was partially approved. The Agency noted that it did not reduce Complainant’s workload by 20%and did not transfer her to Fort Bragg. IF at 289-90, 306. As to the request for a 20% reduction in workload, we note that Agencies are not required to remove any of the essential functions of a position as a reasonable accommodation. See EEOC Enforcement Guidelines on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, General Principles (Oct. 17, 2002) (indicating that a reduction in workload is not a reasonable accommodation). Here, Supervisor 1 discussed Complainant’s requests with Complainant and Manager. IF at 296. Complainant was provided alternate accommodations that include a 10% workload reduction; reduced new patient assignments; and ample time to attend doctors’ visits. IF at 262, 287-88. Complainant has not shown that the Agency’s denial of a 20% reduction in workload constituted a violation of the Rehabilitation Act. 5 2020004985 The Agency also denied Complainant’s request for a transfer to Fort Bragg because she already had an effective reasonable accommodation. IF at 308-309. The Agency noted that Complainant was a civilian and did not meet the Agency’s criteria for transfer on compassionate grounds. IF at 321. Further, generally, the requested transfer cannot be considered a cognizable request for reasonable accommodation because Complainant was in effect seeking a non-hostile stress-free environment. See Tessa L. v. Dep’t of the Interior, EEOC Appeal No. 0120141159 (Jul. 25, 2017) (citing Powell v. Dep’t of the Army, EEOC Appeal No. 0120070275 (Apr. 16, 2009). Simply put, the request to be reassigned due to stress levels does not constitute a reasonable accommodation. Disparate Treatment - Claim 4 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 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). In claim 4, Supervisor 1 stated that a Colonel issued the Notice of Abeyance of clinical privileges to Complainant because of her inability to meet standards. IF at 291-94. Contained in the record is the Notice reflecting that the action resulted from a complaint about Complainant’s interaction with one of her patients. Notice of Abeyance, IF at 59-60. According to Supervisor 1, Complainant had failed to meet the ethical standard of a Social Worker when she engaged in conduct that could have placed a client at risk. Complainant had documented the client’s interview under her husband’s name (who the client was planning to divorce). Interview transcript, IF at 245-49. The Agency has articulated a legitimate non-discriminatory reason for the alleged action. 6 2020004985 We next turn to Complainant to show pretext. Complainant argued that the Agency failed to provide evidence that would allow Complainant to show pretext. However, the burden is on Complainant to present evidence demonstrating that the Agency’s stated reasons are untrue and not worthy of credence. Complainant has not met her burden as she did not present any evidence of pretext. Proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015). Complainant presented no such proof. Here, Complainant herself acknowledged that “she made a mistake by documenting the client interview in the husband’s record.” IF at 219-67. Besides, record evidence reflects that other employees outside of Complainant’s protected classes, including Complainant’s male Coworker and peer (Coworker [who she identified as a witness]), had also had their privileges placed in abeyance. Therefore, Complainant’s claim fails. Harassment We initially note that we are precluded from finding harassment with respect claims 2 and 4 based on the findings above. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). To establish a claim of harassment, complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). Here, Complainant has not established that the alleged events occurred because of any purported protected EEO activity. 7 2020004985 With respect to her remaining harassment allegations, Complainant alleged that Supervisor 1 would barge into her office when she was speaking with clients; that Supervisor 1 was constantly calling and emailing her; and that Supervisor 1 would have Complainant come into his office and sit until he was off of the phone. IF at 226. However, taken together, these alleged actions as described by Complainant lack the requisite severe or pervasive verbal or physical management conduct to create a hostile work environment. Coworker also stated that Supervisor 1 went into other offices, including his, without knowing what Coworker may be doing. Complainant also failed to include a time frame for when the alleged harassment began and when or if it ended. Neither does she state how often Supervisor 1 would walk into her office unannounced on a daily or weekly basis. Therefore, upon review, we find that Complainant’s harassment claim fails and she does not prevail. 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. 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, 8 2020004985 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. 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. 9 2020004985 Such requests do not alter the time limits or 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joann F.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2020005019 Agency No. FSIS-2019-01153 DECISION On August 10, 2020, 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 July 2, 2020, 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. 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 Management Analyst, Contracting Coordinator, GS-13, at the Agency’s Office of the Chief Information Officer (OCIO), Investment Oversight and Workforce Branch in Washington, D.C. Complainant's first level supervisor was the Acting Associate (Supervisor), and her second level supervisor was the Deputy (Deputy). Complainant reported that she learned of an updated position description for her role, also referred to as an appointment summary, on June 3, 2019. Report of Investigation (ROI) at 53. On August 27, 2019, Complainant learned that the Supervisor refused to sign-off on the updated position description which would have elevated her ranking from GS-13 to GS-14. Id. 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. 2020005019 2 While the Supervisor explained that he did not believe the update accurately reflected her duties and she should not be classified as GS-14, Complainant claimed that this did not make sense because he was partially responsible for editing, reviewing, and submitting the reclassification. Id. She further explained that she believed that the Supervisor would not sign off on the promotion because he treated women of color in a disparaging manner. Id. To this extent, Complainant recited that, on October 28, 2019, the Supervisor stated that it was his belief that she was unable or incapable of performing specific tasks or duties. Id. When Complainant asked the Supervisor to explain this opinion, she recalled that the Supervisor responded that it was simply his belief. Id. Complainant also provided that the Supervisor was a GS-14 and did not want her to the same level as him. Id. In addition, Complainant stated that the Supervisor was good friends with another management official who was aware of her 2016 EEO activity. Id. As such, she believed that the two communicated about her prior EEO activity in May or June 2019, and thereafter, the Supervisor no longer wanted to sign the updated position description paperwork. Id. In response to Complainant’s claims, the Supervisor explained that the reason he did not sign off on the updated position description was because after receiving the position description from the Office of Human Resources (OHR), he determined that he had questions regarding inaccuracies in the description. Id. at 61. Namely, the Supervisor noted that the updated description listed activities that Complainant was not doing, nor would she be required to do. Id. He noted that a classified position description was not complete until a final review took place and the corresponding supervisor signed off on it. Id. Although Complainant argued that the Supervisor already had a chance to provide input, he explained that it was his responsibility and prerogative to review the final position description prior to signing the document. Id. During conversations with Complainant and the OHR team, the Supervisor explained that it was mutually agreed that Complainant and the Supervisor would rework the position description to make it mutually acceptable and submit that version for classification review. Id. The Supervisor also responded to Complainant's contention that it was the Supervisor's belief that Complainant was unable to perform tasks. Id. He explained that Complainant asked him why she had not been elected to serve in an acting capacity as Acting Branch Manager when he was not in office. Id. He clarified that Complainant had not demonstrated that she could serve in such a position, which included functions with which she did not have experience. Id. at 63. Lastly, the Supervisor provided that he supervised an all-women staff of six, with only one of the six being Caucasian. Id. at 64. On October 28, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), national origin (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On August 27, 2019, her first-level supervisor refused to sign-off on an updated position description. 2020005019 3 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency concluded that Management satisfied its burden to articulate legitimate, nondiscriminatory reasons for its actions and Complainant’s sex, race, and national origin did not play a part in the decision not to sign off on Complainant’s updated position description. Therefore, the Agency determined that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant reiterates that she was discriminated against when the Supervisor refused to sign off on her updated position description which would have promoted her from the GS-13 to GS-14 level. In response, the Agency argues that Complainant does not identify any newly discovered evidence beyond her bare assertions that the Agency’s stated reasons were pretextual. 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 Chap. 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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. 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). 2020005019 4 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima face case based on race, national origin, sex, and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. To this extent, the Supervisor explained that the updated position description listed activities that Complainant was not doing, nor would she be required to do. The Supervisor also explained that a classified position description was not complete until a final review took place and the corresponding supervisor signed off on it. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Complainant has alleged that the Supervisor was aware of her previous EEO activity, treated women of color in a disparaging manner, and did not want her to be ranked as a GS-14 as it would place Complainant at the same level as him at work. The Supervisor responded to Complainant’s allegations that he treated her differently. He explained that on a specific occasion, Complainant asked him why she had not been elected to serve in an acting capacity as Acting Branch Manager when he was not in office; he clarified that Complainant had not demonstrated that she could serve in such a position, which included functions that she did not have experience with. As to Complainant’s prior EEO activity, she has not presented any concrete evidence indicating that the Supervisor was aware of her EEO activity or that he subjected her to unlawful retaliation based on her prior EEO activity. Rather, she has stated that her Supervisor and was friends with another management official who was aware of her prior EEO activity and Complainant surmised that the two had communicated about the EEO activity. However, as noted, Complainant has not provided any other evidence to support the contention that this communication took place. She has provided only a bare assertion. We find that Complainant has not effectively disputed the Agency’s proffered legitimate, non- discriminatory reasons. Complainant has failed to prove that the Agency's reasons for its actions were a pretext to mask discrimination based on her protected classes or show that the Agency was motivated by discriminatory animus. Therefore, we find that Complainant has failed to meet her burden of persuasion. 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. 2020005019 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). 2020005019 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gaylord I.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2020005033 Hearing No. 450-2018-00002X Agency No. 2016-0117-R06 DECISION On September 9, 2020, 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 June 14, 2019, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS 13 at the Agency’s Regional Office in Dallas, Texas. On October 24, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal (association with a coworker who filed an EEO complaint) under Title VII of the Civil Rights Act of 1964 when: 1. On July 13, 2016, Complainant’s first-line supervisor (Supervisor 1) reassigned some or all of Complainant’s work to another employee; 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 2020005033 2. As recent as July 8, 2016, Supervisor 1 frequently excluded Complainant from relevant meetings and denied Complainant access to information needed to perform the essential functions of his job; 3. In February 2016, Complainant’s second-line supervisor (Supervisor 2) prevented him from leaving a co-worker’s office by blocking the exit; 4. In February 2016, Supervisor 2 questioned Complainant’s candidacy for a detail opportunity and discouraged him from seeking the opportunity; 5. In February 2016, Supervisor 2 questioned Complainant in a threatening manner; 6. In February 2016, Supervisor 2 stated, “it is not in the organization’s best interest” to have Complainant compete for a detail opportunity; and 7. Sometime in February 2015, Supervisor 1 made an offensive comment about Complainant’s weight in the presence of other employees. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On May 7, 2019, the AJ assigned to the case issued a Notice of Intent to Issue Summary Judgment (NOI), informing the parties that she had determined that the case may be appropriate for summary judgment. The NOI described the grounds upon which the AJ based her determination that the case should be summary judged. The AJ informed the parties that unless a party demonstrated that there was a genuine issue of material fact in dispute, no hearing would be held in this matter. The Agency and Complainant filed responses to the NOI in a timely fashion. The Agency also submitted a timely reply to Complainant’s response to the NOI. According to Complainant, management harassed him because of his “association” with a Coworker (Coworker) even though he had not engaged in prior EEO activity and had no involvement with Coworker’s EEO proceeding. ROI at 106. The AJ stated that the facts did not support Complainant’s reprisal claim. The AJ noted that there was no evidence of the existence of a close relationship between Complainant and Coworker. She observed that Complainant and Coworker work in different departments and had tangential contact in the workplace. According to the AJ, Complainant’s “presumption” and “perception” that management harbored animus towards him because of Coworker’s open EEO claim was insufficient to support a finding that Complainant engaged in “protected activity.” Therefore, the AJ asserted, as a matter of law, Complainant’s reprisal allegations failed. The AJ did not further addressed reprisal in the NOI. 3 2020005033 Complainant also alleged that he was subjected to harassment and a hostile work environment based on his race. Regarding claim 1, the AJ determined that Supervisor 1’s insistence that none of Complainant’s work duties were permanently reassigned to another employee (Employee 1) were supported by record evidence. Regarding claim 2, the AJ determined that the evidence showed that Complainant was never denied the opportunity to attend relevant staff meetings and never denied access to his job description. The evidence further revealed that, on one occasion Employee 1 was tasked with attending a meeting of a highly sensitive nature. According to the AJ, because that meeting necessarily involved examination and classification of job descriptions, Complainant was not invited to attend based on his representation to Supervisor 1 that he did not know how to classify a position description. The AJ also noted that the record revealed that, although Complainant volunteered to participate in a mid-year review of Recent Graduates, Complainant and all those who volunteered to partake in the review did not do so because a Regional Trainer (Employee 2) and a Training Officer had already met with these graduates as part of a mid-year assessment. Claim 7 involved Complainant’s allegation that Supervisor 1 referred to him as “fat” when Complainant, who was partially blocking the view at a meeting, was asked to move. The AJ stated that even if Complainant’s version of events was believed, there was no evidence that Supervisor 1 made the comment about Complainant’s weight because of his race. Significantly, the AJ observed, Complainant never attempted to link his race to Supervisor 1’s alleged offensive comment. Instead, the AJ asserted, Complainant declared that Supervisor 1 intended to “hurt his pride and make him feel that he was not worthy.” The AJ determined that a reasonable fact-finder could reasonably deem Supervisor 1’s comment to be distasteful and insulting, but would not, under the circumstances, conclude that the conduct was linked to Complainant’s race or rose to the level of creating a hostile work environment based on that protected trait. Regarding claims 3, 4, 5, and 6, Employee 2 (witness to the alleged incident), asserted that Complainant and Supervisor 2 discussed a detail opportunity. Supervisor 2 had asked Complainant how he felt about applying for the position when Complainant had been with the Agency for a relatively short period of time. Employee 2 recalled Complainant’s response that he was qualified for the detail and would do a “good job” if selected. According to Employee 2, Supervisor 2 wished Complainant “good luck” and left her office. ROI at 214. The AJ determined that there was no corroborative evidence supporting Complainant’s position that Supervisor 2 blocked the exit to Employee 2’s office or otherwise attempted to discourage Complainant’s application for the detail because of his race. Significantly, the AJ observed, Complainant did not attempt to connect his race to the conduct that he attributed to Supervisor 2 as racially motivated in nature. The AJ concluded that summary judgment in favor of the Agency was appropriate because viewing the evidence in the light most favorable to Complainant, the totality of the evidence did not support Complainant’s position that he was subjected to unlawful harassment. 4 2020005033 Over Complainant's objections, the AJ issued a decision without a hearing on June 14, 2019. When the Agency failed to issue a Final Order, the AJ’s decision became the Agency’s Final action. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contests the AJ’s finding, asserting that his claims were addressed as separate incidents as opposed to one claim of a pattern of hostile work environment and retaliatory harassment. Complainant’s main argument is that he has been “marginalized, including his exclusion from meetings and having his work given to others,” in retaliation for his perceived association with Coworker who had pending charges against Complainant’s managers. Complainant bases his argument on his assertions, without evidence, that Supervisor 1 repeatedly warned Complainant to stay away from Coworker because she had EEO claims and was disfavored by Agency management. In addition to the retaliation argument, Complainant asserts that he established race-based harassment. He argues that Supervisor 1’s reassignment, exclusion of Complainant from meetings, and the fact that both Complainant and Coworker were African-American while Supervisor 1 was Hispanic, would be the focus of his discovery should Complainant’s case have been permitted to proceed to hearing. Complainant requests that the AJ’s dismissal be reversed and the case remanded for further processing, including hearing. The Agency did not submit an Appeal statement. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See Id. at Chapter 9, § VI.A. (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”). 5 2020005033 ANALYSIS AND FINDINGS AJ’s Issuance of a Decision without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argued that he established his claims of race-based harassment and a hostile work environment based on retaliation. However, Complainant failed to describe any new evidence that would be proffered at a hearing that would further develop the record in this case. Neither does he identify any genuine issues of material fact in dispute. Therefore, summary judgment was appropriate in this case. Harassment (Hostile Work Environment) and Retaliatory Harassment To establish a claim of 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 class; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 6 2020005033 Here, Complainant alleged that he worked in a hostile work environment. He alleged that Supervisor 1’s reassignment, exclusion of Complainant from meetings, and the fact that both Complainant and Coworker were African-American while Supervisor 1 was Hispanic is adequate basis for his harassment claims. However, this is not the type of severe or pervasive management conduct that would constitute actionable harassment. See Complainant v. Dep't of Treasury, EEOC Appeal No. 0120130880 (Feb. 27, 2015) (finding, in pertinent part, that removal from assignment, and denial of workplace flexibilities was not severe or pervasive). More importantly, Complainant failed to show a nexus between the alleged actions and his protected race category. Therefore, Complainant’s hostile work environment claims fail. Complainant also asserted that the “heart” of his case concerns his allegation that he has been “marginalized, including his exclusion from meetings and having his work given to others in retaliation for his “perceived association” with Coworker.” See Appellant’s Statement in Support of His Appeal at 4. To ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find no bases for Complainant's retaliatory harassment claim as he has not established that the alleged incidents occurred because of any purported protected EEO activity. Nor does the record indicate that Complainant was in any way involved in Coworker’s EEO pending complaint. Complainant may have worked with Coworker, been friends with her, and even sometimes had lunch with her. However, Complainant is not within the “zone of interests” contemplated by the decision in Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) (holding that an employee’s association with a “close family member” could trigger protection under Title VII’s anti-retaliation clause if an employer harms the employee because of his/her close relationship with the employee who had filed an EEO complaint). Therefore, Complainant does not prevail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision. 7 2020005033 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). 8 2020005033 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hyun T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020005077 Hearing No. 410-2019-00564X Agency No. HS-TSA-02499-2018 DECISION On August 10, 2020, 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 July 22, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an SV-1802-E Transportation Security Officer at Hartsfield Atlanta International Airport in Atlanta, Georgia. On October 10, 2018, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of disability (prescribed narcotic pain medication after dental procedure) and reprisal for prior protected EEO activity (contacting EEO Counselor to initiate the instant EEO complaint) when: 1. On July 20, 2018, management reassigned Complainant to administrative duties; 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. 2020005077 2 2. On July 27, 2018, management denied Complainant advanced sick leave and a reasonable accommodation; 3. On July 27, 2018, management told Complainant, “If the dentist prescribes this medication again, it is recreational”; 4. On July 27, 2018, management determined that Complainant was medically unfit for duty; 5. From July 27, 2018, through August 5, 2018, management placed Complainant on leave without pay; 6. From August 6, 2018, through August 19, 2018, management charged Complainant absent without leave; 7. On September 2, 2018, a management official pushed Complainant; 8. On September 6, 2018, a management official stated that Complainant “had training, allegedly”; 9. On September 7, 2018, Complainant asked a management official to help her write her Transportation Officers Performance System self-evaluation, and the management official stated, “No, you might tell”; 10. On September 9, 2018, one management official prevented another management official from moving away from Complainant and then attempted to sweep the floor where Complainant was sitting; 11. On September 16, 2018, a management official avoided everyone in the computer room but tried to sweep under Complainant and then scowled at Complainant while she attempted to clock out; 12. On September 19, 2018, a management official stated at Complainant, then asked what she was doing in Baggage F; 13. On November 15, 2018, a management official brushed against Complainant; 14. On November 16, 2018, a management official yelled and pointed his finger at Complainant; 15. On November 24, 2018, a management official blocked Complainant’s path; and 16. On February 2, 2019, management sent 12 Airport Information Management System alerts to Complainant’s personal cell phone while Complainant was off duty. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case issued an Acknowledgment and Order, which ordered the Agency to provide an affidavit and notified the parties that they could supplement the record. Both the Agency and Complainant supplemented the record. The AJ held an Initial Conference, where the Agency was ordered to further supplement the record. Thereafter, the AJ notified the parties sua sponte of an intent to issue a decision without a hearing. On June 15, 2020, the AJ 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. 2020005077 3 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 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. 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 the parties’ 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. 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. 2020005077 4 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2020005077 5 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020005117 Hearing No. 520-2018-00059X Agency No. HS-CBP-00525-2017 DECISION On August 7, 2020, 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 July 7, 2020, 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. 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 Customs Technician, GS 07 at the Agency’s John F. Kennedy Airport Port of Entry in New York, New York. The Record indicates that the Agency issued a Vacancy Announcement for the position of Paralegal Specialist, JOA number MHCMP-1739409-AKM, open from July 27, 2016, through August 9, 2016. Complainant applied and was considered for the position. 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 2020005117 Two certificates were issued: LN-l6-BLS-54644SO with two applicants; and LN-l6-BLS- 54643SO with three applicants including Complainant. Report of Investigation [ROI] at 117. The selection process consisted of resume reviews and an interview conducted by a three- member panel. Interview scores were based on the answers to interview questions only. Interview scores were rated numerically. Complainant's overall interview score was 61. The Selectee’s interview score was 91. ROI at 144, 151, 157-59. Following the interviews, the Acting Assistant Port Director (Assistant Director 1) prepared the synopsis for four applicants, including Complainant. The synopsis included experience, interview results, interview score, and resume. According to Assistant Director 1, Complainant’s interview score was the second to lowest. ROI at 134. The Acting Assistant Director (Assistant Director 2) was the recommending official. When he became aware that there was only one vacancy, Assistant Director 2 recommended Complainant and another applicant (the selectee [white]) for the position based on input from Assistant Director 1. ROI at 127-28. A former Director of Field Operations was the selecting official (Selecting Official). On January 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when: 1. On or around December 12, 2016, Complainant learned that she was not selected for the position of paralegal specialist, GS-0950-09, advertised under Job Opportunity Announcement (JOA) Number MHCMP-1739409-AKM (Announcement). The Agency accepted the complaint for investigation. 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. On December 3, 2018, the AJ issued an Acknowledgment Order and ordered the parties to attend an alternative dispute resolution session. On August 26, 2019, the AJ issued a directive to the parties to make a submission on or before August 30, 2019. The Agency responded on August 30th that it was waiting to hear from Complainant and would file the submission as soon as Complainant responded. Complainant did not respond to the AJ and made no response to the Agency. The AJ issued another Order on September 4th to the parties to file the submission by the end of that day. The Agency responded that it had not yet received a response from Complainant. That same day, the AJ issued a second Order directing Complainant respond to the AJ’s directive on that date, September 4th (as previously Ordered), or by the next day “at the latest,” and that if there was a problem, Complainant was to contact Agency Attorney, a Commission Specialist, or the AJ by the next day. Complainant did not respond to the Order. On September 10, 2019, the Agency sent Complainant, by certified mail, the document awaiting a response by the Agency and the AJ. On September 12, 2019, the AJ issued a Notice and Order to Complainant to show cause why Complainant should not have her request for hearing dismissed for noncompliance with a directive of the AJ. 3 2020005117 The Notice and Order directed Complainant to submit a written response, within 5 days, or by September 17, 2019, stating in writing why she failed to comply with the AJ’s Orders, or the hearing request would be dismissed and remanded to the Agency. Complainant failed to respond. On September 24, 2019, the AJ dismissed Complainant’s hearing request on the grounds that she failed to comply with the orders of an AJ. The AJ remanded the complaint to the Agency, and 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. CONTENTIONS ON APPEAL Complainant did not submit an appeal brief; and she did not clearly state the reason for this appeal in her Appeal form. On appeal, the Agency asserts that Complainant could not demonstrate that the Agency’s reasons for her non-selection are pretextual. The Agency argues that Complainant could not articulate why she was the superior candidate to the selectee. The Agency also asserts that the selection decision was based on the selectee’s qualifications for the position rather than his race. The Agency requests that the Commission deny Complainant’s appeal in its entirety. STANDARD OF REVIEW 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 Disparate Treatment 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 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). 4 2020005117 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs 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). Here, based on input from Assistant Director 1, Assistant Director 2 stated that he recommended the selectee because he was a more qualified candidate than Complainant. ROI at 127. Based on that recommendation, the selecting official selected the selectee. ROI at 164-168. Included in the record is information provided by an interview panel member reflecting that the interviews were conducted in person and that Selectee’s writing skills were excellent, whereas Complainant’s skills were substandard. Selectee’s oral skills were demonstrated through his responses whereas Complainant’s responses were not clear or concise. Complainant’s also failed to answer some questions completely. Complainant was inarticulate at times and in a few instances, she failed to address the substance of a question. ROI at 158-159. Included in the record are the recommendation memos that support these statements. See ROI at 230-31. The Agency has articulated a legitimate non-discriminatory reason for Complainant’s non-selection. We next turn to Complainant to show pretext. Complainant believed that the selectee, over whom she had seniority, was selected because he is White. She also stated that she was more qualified for the position because of her length of service and experience, including training others. ROI at 31-2. However, Complainant herself stated that Selectee was a GS-12 employee who was offered the position at a GS-09. ROI at 30. Also included in the record are the resumes for both Complainant and Selectee. ROI at 192-3, 203-4. Selectee’s resume more extensively reflect his qualifications and experience while Complainant’s resume indicates that she had the same position since 1992. No additional qualifications are included. This shows that Selectee was in fact more qualified than Complainant. Also, Assistant Director stated that he was unaware of Complainant’s race. ROI at 126-27. Complainant did not rebut this statement. We note that without more, Complainant’s assertions and arguments do not prove race-based discrimination. Moreover, we have repeatedly held that mere years of service, or length of service, does not necessarily make an individual more qualified to meet the needs of an organization. 5 2020005117 Neither does years of service automatically make an individual more qualified. The Commission will not substitute its judgment for the judgment of selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate, unless other facts suggest that proscribed considerations entered into the decision-making process. See, e.g., Dominica V. v. Dep't of Agric., EEOC Appeal No. 0120182366 (Oct. 31, 2019). We find no such facts in the present case. Upon review, we find that Complainant has not shown that the Agency’s reasons for choosing Selectee over Complainant were pretext. Therefore, Complainant does not prevail. 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. 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. 6 2020005117 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. 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nancey D.,1 Complainant, v. William Kilbride, Chair, Tennessee Valley Authority, Agency. Appeal No. 2020005152 Hearing No. 420-2020-00087X Agency No. TVA-2018-0055 DECISION On August 11, 2020, 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 July 16, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Boilermaker at the Agency’s Browns Ferry Nuclear Plant in Athens, Alabama. On July 9, 2018, the Superintendent of Nuclear Mechanical Maintenance (“Superintendent”) notified Complainant that she would be terminated, effective August 8, 2018. Report of Investigation (ROI) at 243. The July 9, 2019, Notice of Termination (“Notice”) stated that, on April 22, 2018, Complainant was involved in an automobile accident while driving an Agency rental vehicle and was arrested for driving under the influence (DUI). Id. According to the Notice, Agency rental vehicles are provided to Agency employees for conducting Agency business, and unauthorized use of these vehicles is prohibited and constitutes misuse of government property. Id. 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. 2020005152 2 The Notice further stated that driving an Agency rental vehicle while under the influence of alcohol is considered willful misuse of government property. Id. According to the Notice, Complainant’s actions did not comply with the Agency Code of Conduct, which prohibits the use of alcohol that may adversely affect the employee’s job performance or that may reflect unfavorably upon public or government confidence in the manner in which the Agency carries out its responsibilities. Id. Finally, the Notice stated that Complainant’s actions violated the Agency’s ethical guidelines, which state that employees should avoid any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the government. Id. In April 2018, Complainant worked at the Agency’s Sequoyah Nuclear Plant near Chattanooga, Tennessee following an outage. ROI at 87-94. On Friday, April 20, 2018, Complainant drove her rental car paid by the Agency from Chattanooga to Alabama. Id. According to Complainant, in line with past practice, she planned to return the car to the rental company on Monday, her next scheduled workday. Id. Complainant stated that her personal vehicle was in the shop and that she drove the Agency rental car to dinner with a friend on Sunday, April 22, 2018. Id. According to Complainant, she had “a couple” of alcoholic drinks at dinner. Id. On the way home, Complainant averred that she ran off the road and hit a concrete culvert, causing the car to flip over. Id. Complainant stated the car was “wrecked” and that she cited for DUI. Id. Complainant noted that, to date, she had not been convicted of the DUI. Id. According to Complainant, she successfully completed a substance abuse program and expected to be allowed to return to work. Id. Complainant alleged that similarly situated male employees with DUIs or failed drug or alcohol tests at work have not been terminated. Id. According to the TVA Police investigation, two employees of the car rental company described Complainant as “well known” to the staff because she is demanding in the type of vehicle she wants to rent. ROI at 206-12. One employee stated that Complainant sometimes states that she works for the Agency and that, because the Agency is the biggest client of that location, she expects the employees to rent her the car she wants. Id. This employee stated that, after Complainant wrecked the rental car, she called the office and was very flippant and giggly, stating, “oh well, that’s what happens when you drink too many bloody marys.” ROI at 210. The other employee stated that Complainant usually insists on a Camaro or a Jeep Wrangler, which are not included in the Agency rental rate. ROI at 211. In April 2018, Complainant asked about SUV rentals and requested a BMW X3. Id. Although the BMW X3 is considered a premium class rental, Complainant was extended the Agency rental rate for the BMW X3 in April 2018. ROI at 210-11. Complainant denied that she was demanding towards the rental car office employees. ROI at 100-02. Complainant stated that she was always polite and would ask if there were any larger vehicles like a Jeep that would have room for her stuff. Id. Complainant averred that other Agency employees would also ask if upgrades were available. Id. 2020005152 3 On November 15, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity (testified at EEOC hearing as a witness in support of female coworker) when: 1. On or about June 21, 2018, the Superintendent informed Complainant’s coworkers that the Executive Review Board decided to terminate Complainant; and 2. On or about July 9, 2018, the Agency terminated Complainant. 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 timely requested a hearing. The AJ assigned to the case afforded the parties an opportunity to supplement the record and held an Initial Conference on March 10, 2020, to discuss the issues to be adjudicated in detail. The AJ determined sua sponte that the complaint did not warrant a hearing2 and issued a decision without a hearing on June 3, 2020. The AJ found that there were no genuine issues of material fact and that further development of the record was unlikely to lead to a finding of discrimination. The AJ concluded that the preponderance of the evidence in the record did not establish that the Agency’s legitimate, nondiscriminatory reasons for terminating Complainant was pretextual. The AJ found that it was undisputed that Complainant was terminated because: (1) she was involved in an automobile accident while driving an Agency rental vehicle; (2) her accident led to her arrest for DUI; (3) her actions were deemed unacceptable and a violation of Agency policy and ethical standards; (4) her actions were unauthorized and involved a misuse of government property; and (5) her actions violated the Agency’s Code of Conduct. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in failing to allow her to conduct discovery before issuing a decision. Complainant argues that a male former employee had a DUI in a rental vehicle but was not terminated for cause and that she is entitled to discovery on this comparator (Comparator1) and other male comparators with DUIs. According to Complainant, the Agency has a history of looking the other way with male employees with substance abuse issues. Complainant also contends that she established a prima facie case of reprisal. Complainant requests that the Commission find that she was subjected to discrimination or remand the matter for a hearing on the merits. 2 The Agency filed a motion for summary judgment on June 2, 2020, but the AJ’s June 3, 2020, decision does not reference the Agency’s motion. 2020005152 4 The Agency contends that the AJ correctly issued a decision without a hearing finding no discrimination. ANALYSIS AND FINDINGS 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. Complainant contends that the AJ erred in issuing a decision before she had the opportunity to conduct discovery. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 2020005152 5 Regarding Complainant’s contention that the record requires supplementation regarding male comparators, we disagree. The investigative record contains information about nine male comparators, including Comparator1. ROI at 294-324. Between June 1997 and February 2018, four male comparators were terminated for misconduct including unauthorized use of an Agency vehicle, leaving the scene of an accident in an Agency vehicle, and an arrest for DUI and reckless driving in an Agency vehicle. ROI at 294-315. In September 2003, another male comparator was placed in a non-work, non-pay status pending an investigation into an accident and firearms discovered in the Agency vehicle and left the Agency in January 2004. ROI at 304-07. This employee’s former supervisor stated that he did not recall the employee being under the influence of drugs or alcohol at the time of the accident and noted that he was licensed to conceal carry the firearms. Id. Another male comparator was suspended for 30 days on February 26, 2018, for unauthorized use of an Agency-owned vehicle over the weekend while his personal vehicle was in the shop. ROI at 319-20. However, the record does not indicate that this employee was under the influence. Id. A different male comparator received a written warning on September 11, 2013, because he was involved in an accident after looking at his cell phone while driving an Agency-owned vehicle without a seatbelt, injuring himself and damaging the vehicle. ROI at 316-18. This employee’s then- supervisor stated that he was trying to read an email while driving and denied knowledge that the employee was under the influence at the time. Id. According to the record, another male comparator (Comparator2) was arrested for public intoxication in April 2016 and was charged with felony drug possession because there were prescription medications not prescribed to Comparator2 in the vehicle. ROI at 301-03. Comparator2 stated that the incident involved his personal vehicle, did not take place on Agency property, and occurred when he was off duty. Id. According to Comparator2, after he reported his arrest, he was suspended for fitness for duty reasons for approximately two months, but he was not disciplined. Id. Regarding Comparator1, the record shows that he worked at the Agency’s Muscle Shoals, Alabama Office in 2007, was selected for a position at the Agency’s Colbert Fossil Plant in 2008, and that, effective June 1, 2015, was terminated from Agency employment through a “no fault separation.” ROI at 321-24. There are no disciplinary records for Comparator1 in the investigative record. Id. The Manager, Legal Operations stated under penalty of perjury that, although the Office of the General Counsel could not search its records concerning vehicular accidents and/or employee misconduct by subject matter, the records could be searched by employee name or case name. ROI at 335. Complainant alleged that Comparator1 received a DUI in an Agency-owned vehicle, but she did not provide any additional details. ROI at 92-93. Another witness stated that Comparator1 left Browns Ferry Nuclear Plant after his fifth DUI but continued to work for the Agency. ROI at 169. Although the witness did not know whether Comparator1 had wrecked a vehicle, the witness speculated that Comparator1 “possibly” may have gotten one of the DUIs in an Agency-owned or Agency rental vehicle. ROI at 170. 2020005152 6 We find that this unsupported conjecture by Complainant and the witness, combined with the absence of disciplinary records found under Comparator1’s name, is insufficient to create a genuine issue of fact as to whether Comparator1 received a DUI while driving an Agency vehicle but was not terminated. We therefore agree with the AJ’s conclusion that Complainant failed to establish by preponderant evidence that the Agency’s legitimate, nondiscriminatory reasons for her termination were a pretext for discrimination based on sex and/or reprisal. Finally, regarding Complainant’s claim that the Superintendent informed her coworkers that the Executive Review Board had decided to terminate Complainant, the Superintendent averred that the Agency’s “safety conscious” work environment dictates that he truthfully answer any employee questions. ROI at 126-27. The Superintendent stated that he told employees that Complainant was no longer an employee of Browns Ferry Nuclear Plant and had been terminated, but that he could not discuss any of the details. Id. Upon review, we find that Complainant has not established by the preponderance of the evidence in the record that she was subjected to discrimination based on sex and/or reprisal as alleged. 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 order fully implementing the AJ’s decision without a hearing finding no discrimination. 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 2020005152 7 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. 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. 2020005152 8 Such requests do not alterthe 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alma F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005155 Hearing No. 461-2019-00120X Agency No. 2003-0667-2018105380 DECISION On September 14, 2020, 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 September 1, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a GS-0679-6 Advanced Medical Support Assistant at the Overton Brooks VA Medical Center in Shreveport, Louisiana. On November 4, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), disability (mental), and reprisal for prior protected EEO activity when: 1. On August 5, 2016, Complainant’s supervisor (Supervisor-1) informed her that Ear, Nose, and Throat (ENT) Section Chief (ENT Chief) alleged that Complainant’s work performance was below expectation and unacceptable; 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. 2020005155 2 2. On or about August 8, 2016, Supervisor-1 instructed Complainant to report to the Business Office because the ENT Chief ordered a fact-finding investigation; 3. On August 22, 2016, Supervisor-1 instructed Complainant to provide a response to her involvement in alleged incidents that occurred in the ENT Clinic dating back to June 2016; 4. In April 2017, a Resident Physician accused Complainant of failing to schedule a patient’s appointment; 5. On July 10, 2017, a Resident Physician verbally assaulted Complainant; 6. On December 7, 2017, the Business Office Chief (BOC-1) detailed Complainant to Physical Medicine and Rehabilitation Services (PM&RS) for 15 days; 7. On December 8, 2017, BOC-1 instructed Complainant not to go to the ENT Clinic because a Physician Assistant (PA) complained that Complainant’s presence created a hostile work environment; 8. On January 4, 2018, the Interim Business Office Chief (BOC-2) informed Complainant that she was the subject of a fact-finding investigation due to PA’s allegations against her; 9. On January 9, 2018, and continuous, the new PM&RS Chief questioned Complainant’s whereabouts; 10. On January 10, 2018, Complainant’s supervisor (Supervisor-2) informed her that she would be returning to the ENT Clinic to resume her duties; 11. On January 12, 2018, Supervisor-2 issued Complainant a proposed letter of reprimand; 12. On February 1, 2018, BOC-2 sent Complainant a meeting request for February 2, 2018, when she told Complainant that it was not safe for her to work in the ENT Clinic due to the high level of stress; 13. From March 5-29, 2018, unidentified individuals attempted to sabotage Complainant’s work; 14. Beginning on May 22, 2018, the new Interim Business Office Chief (BOC-3) informed Complainant that he had received many reports of contact from pharmacists regarding Complainant’s work performance; 15. On May 25, 2018, BOC-3 instructed Complainant not to schedule appointments until further notice, pending the outcome of a fact-finding investigation; 16. On June 12, 2018, the Business Office Chief (BOC-4) temporarily assigned Complainant duties involving appointment reminder/return-to-clinic calls and other administrative tasks pending the outcome of a fact-finding investigation; 17. In June and July 2018, BOC-4 required Complainant to go through several trainings to get her scheduling keys returned; 18. On October 10, 2018, the Assistant Business Office Chief assigned Complainant 400 return-to-clinic calls; 19. On November 2, 2018, the Assistant Business Office Chief asked Complainant about the status of the 400 return-to-clinic calls; 20. On November 8, 2018, BOC-4 met with Complainant and Pharmacy Service staff, who proposed that Complainant’s scheduling keys be taken away from her; and 21. As of the date she filed her complaint and continuing, BOC-4 has not provided Complainant with an assigned work area or section. 2020005155 3 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. 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 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. 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 the parties’ 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. 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 2020005155 4 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. 2020005155 5 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colene M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005179 Hearing No. 490-2019-00181X Agency No. 200I-0614-2018106318 DECISION On September 15, 2020, 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 July 17, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Social Worker at the Agency’s Memphis Medical Center in Memphis, Tennessee. She requested that a supervisor oversee her clinical hours in order to obtain her Licensed Clinical Social Work (LCSW) designation. Record of Investigation (ROI) at 193, 206. Mental Health Supervisor (Supervisor) and Section Chief of Mental Health, Social Work, and Recovery Programs (Section Chief) explained the process for obtaining the LCSW designation. Section Chief stated that, to acquire an LCSW, Social Workers are responsible for obtaining a LCSW to meet weekly with them and supervise the required 3,000 clinical hours. ROI at 187. 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. 2020005179 2 Supervisor explained that the process is documented on a weekly basis, once the agreement has been finalized and the appropriate documentation has been submitted. ROI at 193. Once all of the steps are completed, stated Supervisor, the final packet is submitted to the licensure board so that the candidate may be allowed to take the examination. ROI at 193. The National Association of Social Work policy, per Section Chief, is that “you [do not] sign off on something you did not do. It would be unethical.” ROI at 187. Moreover, Supervisor clarified that this type of supervision is separate and distinct from the applicant’s employment supervisor, unless there is a supervisory agreement between the two parties. ROI at 193. Chief of Mental Health Services (Chief) confirmed that there was no specific individual responsible for signing Complainant’s LCSW paperwork. ROI at 203. Rather, it was Complainant’s responsibility to arrange for this supervision. See id. In this case, all parties concur that there was no written agreement between Complainant and any Agency employees to perform her LCSW supervision. ROI at 297. Supervisor stated that Complainant asked her to perform Complainant’s supervision for her LCSW. Supervisor asserted that she declined because she did not have the time to perform this function. ROI at 193. On April 19, 2016, Complainant sent Section Chief a message asking if Section Chief could do LCSW supervision. The response from Section Chief was, “I will.” ROI at 206. Complainant alleged that, in August 2017, she told Section Chief that she completed her required face- to-face supervised hours and needed Section Chief’s signature because she “was almost done.” ROI at 179. Complainant asserted that Section Chief responded by asking about her EEO complaint. ROI at 179. Complainant stated that she repeatedly asked Section Chief to sign her documentation, in October 2017, December 2017, and February 2018. Complainant resigned from the Agency on February 22, 2018. ROI at 237. In April 2018, Complainant stated that she visited Section Chief’s office and that Section Chief said she had to “think about signing my hours because I didn’t listen to her.” ROI at 179. Section Chief asserted that, even after Complainant’s resignation, she asked Section Chief to sign off on her paperwork. ROI at 187. Section Chief stated that she gave Complainant the appropriate paperwork, as she did every similarly situated employee, but she told Complainant that she would not supervise her for licensure purposes. ROI at 140. Section Chief alleged that Complainant brought her a completed book for her signature. ROI at 140. According to Section Chief, she explained to Complainant that she could not sign the LCSW paperwork, because she did not perform LCSW supervision of Complainant and could not sign anything that had not been discussed, that it would be unethical. ROI at 140, 187. Section Chief went on to state, “I was not going to sign off on something that did not happen…and was not going to sign off on something she brought back to the [Agency] after she resigned.” ROI at 187. Section Chief did not indicate that she said anything about Complainant’s EEO activity during this conversation, as alleged by Complainant. ROI at 179. 2020005179 3 On April 26, 2018, Complainant messaged Section Chief asking whether she had decided to sign off on Complainant’s hours. When Section Chief did not reply, Complainant messaged: “Okay, well I can see you’re still reading my messages and not responding. I won’t beg you.” ROI at 212. On May 12, 2018, and, again, on September 12, 2018, Complainant emailed Section Chief asking to discuss Section Chief’s “agreed upon 3,000-hour supervision and completion as well as the application process[.]” ROI at 214-15. In an October 2, 2018 email to Supervisor, Complainant stated that Section Chief refused to sign off on her clinical supervision hours and requested that Supervisor sign the documentation. In response, Supervisor declined and stated she was too busy. ROI at 235. On October 24, 2018, Complainant sent a message to an unidentified individual stating that Section Chief was not going to sign any of her hours and that she was going to “have to start over” beginning October 1, 2018. ROI at 216; 260-96. On December 11, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when Section Chief refused to sign off on her request for certification of clinical hours during her employment with the Agency. 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 timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on July 14, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not submit a brief in support of her appeal. The Agency contends that Complainant has not shown that anyone at the Agency agreed to complete her clinical representation for her LCSW. Moreover, the Agency claims that Complainant’s allegations about statements made by Supervisor and Section Chief were vague and without merit. Finally, the Agency argues that there was no requirement for Complainant to have supervision or complete her licensure to maintain her position at VA. ANALYSIS AND FINDINGS Standard of Review 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 . . .”); 2020005179 4 see also Equal Emp. Opportunity Mgmt. Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). Summary Judgment We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not asserted a dispute of material fact. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 2020005179 5 The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant meets the prima facie case for race and retaliatory discrimination, we now turn to the Agency to articulate a legitimate, non-discriminatory reason for its actions. We find that it has done so here. Specifically, the relevant Agency officials stated that they did not perform supervision of Complainant relative to her LCSW clinical hours, nor were they required to do so. Moreover, Section Chief asserted that to sign Complainant’s paperwork, when she had not supervised Complainant, would be unethical. As such, both Supervisor and Section Chief provided legitimate, nondiscriminatory reasons to decline to sign Complainant’s LCSW paperwork. We now turn to Complainant to establish that the Agency’s reason constituted pretext for discrimination. Complainant stated that Section Chief brought up her EEO complaint in August 2017, when she asked Section Chief to complete Complainant’s LCSW paperwork. Section Chief stated that she did not agree to fill out the paperwork because she had not supervised Complainant. There are no witnesses or other evidence corroborating Complainant’s assertion. As such, we find that complainant failed to meet her burden of proof by a preponderance of the evidence that there was discriminatory intent in Supervisor’s and Section Chief’s decision to not sign her supervision paperwork. Rojas v. Dep’t of the Navy, EEOC Appeal No. 0120063514 (June 25, 2007) (affirming that when the evidence is in equipoise, Complainant did not meet their burden of proof by a preponderance of the evidence). While there is evidence that Section Chief had, at some point, agreed to complete LCSW paperwork for Complainant, there is no evidence, beyond the uncorroborated recollection by Complainant of a singular statement made by Section Chief, that Section Chief’s decision to not sign Complainant’s paperwork was due to retaliatory discrimination. 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 Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Even if an agreement was present, that was not fulfilled, Complainant has not provided sufficient evidence that the action was retaliatory, as opposed to merely poor management or mistake. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus); Bodalia v. Dept. of Vetereans Affs., EEOC Appeal No. 01955275 (Aug. 27, 1997) (affirming that poor management by an Agency is not, in and of itself, evidence of discrimination). In this case, there is no corroborated evidence of unlawful motivation for the Agency’s actions. 2020005179 6 Complainant has failed to meet her burden in showing that the Agency’s proffered legitimate, non-discriminatory reasons were pretext to mask unlawful discriminatory animus. Therefore, the AJ’s finding of no discrimination was proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision that there was no discrimination on the part of the Agency, and the Agency’s decision to implement the same. 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). 2020005179 7 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. 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myrna S.,1 Complainant, v. Isabel Casillas Guzman, Administrator, Small Business Administration, Agency. Appeal No. 2020005212 Hearing No. 520-2019-00582X Agency No. 01-18-028 DECISION On September 16, 2020, 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 July 8, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant, 1101, GS-08 at the Agency’s District Office facility in New York, New York. Complainant provided administrative support for the economic development team (EDT), which consisted of about 4 economic development specialists (EDS) and one supervisory economic development specialist (Supervisor 1). Report of Investigation [ROI] at 89. Supervisor 1 was Complainant’s first-line supervisor. Id.; ROI at 317. 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 2020005212 On April 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin (Polish), color (White), and age (59) when: 1. On December 21, 2017, Complainant received a Notice of Reprimand; 2. From July 20, 2016 until May 12, 2018, Complainant was prohibited from attending SBA’s outreach activities with the Polish & Slavic community; 3. On January 20, 2017, May 1, 2017, and October 28, 2017, Complainant was prohibited from attending “SCORE” Workshops, round table meetings with Polish Delegation, Trade and Investment Section of the Consulate General of the Republic of Poland New York and visiting the Agency resource partners; 4. From July 20, 2016 until May 12, 2018, Complainant’s arrival and departures were subjected to greater scrutiny than her coworkers; 5. On February 1, 2018, Management threatened to place Complainant on a reasonable accommodation; 6. On an undetermined date, Complainant was isolated from coworkers and unable to join them on field visits and meetings; and 7. On an undetermined date and ongoing, Management refused to speak to Complainant further isolating her. The Agency accepted the complaint for investigation. 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 timely requested a hearing. The assigned AJ issued an Acknowledgement Order on November 11, 2019. The Agency filed a motion for summary judgment on May 29, 2020. Complainant opposed the motion on June 22, 2020, and the Agency submitted a reply on July 2, 2020. The AJ asserted that the record of investigation and submissions by the parties showed that there were no genuine issues of material fact in dispute. The AJ granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on July 8, 2020. The AJ noted Complainant’s reliance on the affidavit of a former agency employee (Witness 1) as corroboration for some of her claims. According to the AJ, the inconsistencies, troubling racial exchanges and Witness 1’s financial interest in the case rendered her testimony “incredible.” 3 2020005212 Regarding claim 1, the AJ noted Supervisor 1’s testimony that Supervisor 1 issued Complainant a Notice of Reprimand for 1) failing to attend a staff meeting, and 2) Complainant’s conduct at a one-on-one meeting with Supervisor 1 regarding Complainant’s performance plan. Complainant was late to the meeting, confrontational when she disagreed with some of the standards, and left the meeting abruptly. According to the AJ, when questioned about the basis of the reprimand, Complainant wavered between having little recollection of the events and general denials of the conduct at issue. The AJ found that Complainant provided no evidence giving rise to a reasonable inference that Supervisor 1 was motivated by discrimination in meting out the reprimand. The AJ explained that Supervisor 1’s action represented a typical workplace occurrence - a supervisor taking action in response to observed transgressions of a supervisee. Regarding claims 2, 3, and 6, the AJ noted Supervisor 1’s assertions that the outreach activities at issue simply were beyond the purview of Complainant’s job duties. It was the responsibility of EDS to conduct such outreach. The AJ noted Complainant’s assertion that she was permitted to play some role in outreach events to the Polish and Slavic communities under past supervisors. Under Supervisor 1, however, Complainant was only permitted to attend such events on her own time. Complainant also was involved in the planning of an event during which Complainant either misunderstood or deliberately did not follow Supervisor 1’s instructions regarding arrangements for the outreach. The AJ noted that Supervisor 1 was relying on Complainant’s job description in denying her a larger role in any outreach. The AJ also found that Complainant failed to show why agency representatives would have had a discriminatory motive for excluding her from such events. Regarding claim 4, the AJ noted that first, no discipline or other action was taken against Complainant based on the alleged increased scrutiny. Second, Complainant admitted that the alleged scrutiny had no real impact on her. The AJ found that Complainant’s claim failed because she suffered no adverse action as the terms and conditions of her employment were not adversely affected in anyway. Regarding claim 5, the AJ noted Supervisor 1‘s explanation that she asked Complainant if she needed an accommodation because of a temporary condition that made it difficult for Complainant to type; and that if so, Complainant would need to provide supporting medical documentation. Complainant stated that she did not need an accommodation, she provided no documentation, and no action was taking regarding the matter. The AJ found that nothing in the stated facts constituted an adverse action on the part of the Agency. Neither is there evidence that Supervisor 1 acted out of bias. With respect to claim 7, the AJ found that Complainant generally failed to provide specifics, but offered that Supervisor 1 would not greet her in the office or keep her apprised of upcoming meetings and projects. In that regard, the AJ cited to Commission precedent consistently finding that such “petty slights” and “trivial annoyances” are insufficient to serve as adverse employment actions. 4 2020005212 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contests the AJ’s decision, asserting that the AJ erred when he granted the Agency’s motion for a decision without a hearing. Among other things, Complainant reiterates her reasons for believing that discrimination had occurred based on her protected classes. Complainant also argues that the AJ ignored “relevant and competent” evidence that raise a genuine issue of material fact regarding Complainant’s claims while adopting several of the Agency’s facts as undisputed notwithstanding sworn testimony disputing those facts. Complainant argues that the AJ erred in dismissing Witness 1’s sworn statement and relying on the Agency’s submission of correspondence without context that, Complainant asserts, rendered Witness1’s testimony “incredible.” Complainant cites, for example, to Witness 1’s testimony that she witnessed Supervisor 1 acquiescing and agreeing with the anti-Polish comments uttered by members of the EDT (e.g. calling Complainant “Eurotrash,” making fun of her Polish accent, commenting that “Poles are stupid” and they are “all alike”). Complainant requests that the Commission overturn the Agency’s Final Order incorporating the AJ’s Decision and Order, make a determination in favor of Complainant on all her claims, and issue any other relief deemed just and proper. On appeal, the Agency expresses agreement with the AJ’s analysis of each of Complainant’s claims. The Agency also asserts that the evidence of record that Complainant relied on in her appeal brief does not support a finding that the AJ’s decision was in error. Among other things, the Agency argues that the AJ properly discounted Witness 1’s affidavit as it is unreliable, uncorroborated, and irrelevant. Notably, the Agency asserts, Witness 1 retired in 2015, before any of the investigated incidents occurred. The Agency argues that Witness 1 therefore lacks any direct knowledge or direct observation of any of the events in question. The Agency states that Complainant’s arguments on appeal are not supported by the evidence of record, misrepresent that evidence, and are wholly unpersuasive. The Agency argues that Complainant’s appeal tried to reframe numerous undisputed facts by presenting inaccurate and misleading arguments to create nonexistent issues. The Agency requests that the AJ’s Decision be affirmed, and Complainant’s appeal be denied and dismissed in full. STANDARD OF REVIEW 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. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed 5 2020005212 de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 AJ’s Issuance of a Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant did not demonstrate she would have been able to show that the reasons given by the Agency for its alleged discriminatory conduct were not the true reasons for its actions had the AJ not discounted Witness 1’s testimony. Nor does Complainant demonstrate that there is any genuine issue of material fact in dispute. Even construing any inferences raised by any undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, summary judgment was appropriate. 6 2020005212 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 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. Affairs 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). Here, with respect to claim 1, the Agency stated that Supervisor 1 issued a letter of reprimand to Complainant for Complainant’s failure to attend a staff meeting; and for being disrespectful to Supervisor 1 in Complainant’s performance standards discussion meeting. ROI at 86-88, 124- 26. With respect to claims 2, 3, and 6, Supervisor 1 explained that attending the events at issue was outside of Complainant’s job functions as a Program Support Assistant. Agency Summary Judgement Motion [Agency SJ Mot.] Exhibit [Ex.] 2 at 95-6, 122, 146, 148. The record includes Complainant’s position description which supports the Agency’s explanation, limiting Complainant’s contact with entities outside the Agency to specific purposes not including outreach. ROI at 118-120. With respect to claim 4, Supervisor 1 explained that Complainant did not always adhere to Agency-wide leave and attendance policy as Complainant would use unrequested leave and failed to later request such leave unless asked to do so. Agency SJ Mot. Ex. 2 at 113-117. With respect to claim 5, Supervisor 1 had wanted to know if Complainant needed reasonable accommodation to perform an assignment when Complainant had a papilloma on her finger. Complainant did not need any accommodation, and none was provided. Agency SJ Mot. Ex. 10. 7 2020005212 With respect to claim 7, the Agency asserted that Complainant failed to describe her allegation with specificity, only identifying a set of “social niceties” that had no impact on the terms and conditions of her employment. The Agency has articulated legitimate non-discriminatory reasons for its actions. We next turn to Complainant to show pretext. Complainant’s only effort at showing pretext are her uncorroborated allegations that the alleged management actions were motivated by factors related to her protected classes. Complainant however did not dispute that Supervisor 1 issued the discipline in claim 1 because Complainant repeated disrespectful behavior for which she was previously warned. ROI at 98. The record reflects that a black African-American EDS had received similar discipline around that same period. ROI at 241-46. Nor does limiting some of Complainant’s activities to her job description translate to discrimination on the part of Supervisor 1 regarding claims 2, 3, and 6. We have stated that to show pretext, a complainant must show that management displayed some sort of discriminatory animus. See January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015) (stating that proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record). We find no such showing here. Therefore, Complainant’s claims fail. Likewise, Complainant does not prevail on claims 4, 5 and 7 because there is no evidence that any adverse action was taken against her nor were any terms and conditions of Complainant’s employment impacted by the alleged management actions with respect to those three claims. Therefore, she is not an aggrieved employee nor is she entitle to her requested remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994); Best v. Dept. of Transportation, EEOC Appeal No. 0120111844 (Jul. 6, 2011) (defining an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy.) CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s Final Order adopting it. 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. 8 2020005212 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. 9 2020005212 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020005353 Hearing No. 430-2018-00069X Agency No. 4K-280-0065-17 DECISION On September 23, 2020, 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 August 25, 2020, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant 2, Q-01 at the Agency’s Laurinburg Post Office in Laurinburg, North Carolina. His supervisor was Postmaster. Three other supervisors at the Laurinburg Post Office during the relevant time were Acting Supervisor of Customer Services (Acting Supervisor); Supervisor, Customer Services (Supervisor); and Supervisor, Customer Services 2 (Supervisor 2).2 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 We note that Supervisor 2 did not complete an affidavit or testify. 2020005353 2 On March 24, 2017, and via amendments on June 16, 2017 and July 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of color (brown skinned) and sex (male) under Title VII of the Civil Rights Act of 1964 when: 1. on January 18, 2017, and March 2, 20173, Complainant received discipline for failure to follow instructions; 2. on January 29, 2017, and March 7, 2017, Complainant was spoken to in a demeaning manner; 3. between November 29, 2016, and December 8, 2016, Complainant was accused of wrecking a postal vehicle; 4. from August 2016 to February 2017, Complainant was not paid mileage for trips to other work locations; 5. on unspecified date(s), Complainant was summoned to the supervisor’s office for discussions; 6. on unspecified date(s), Complainant was required to work at other work locations; 7. on unspecified date(s), Complainant was placed on a stand-by work schedule; 8. on January 12, 2017; January 18, 2017; January 22, 2017; and January 28, 2017 - February 6, 2017, Complainant’s leave requests were denied; 9. on February 7, 2017, Complainant was placed on the Deems Desirable List; 10. on February 28, 2017, Complainant was issued a seven (7) day suspension for being absent without official leave (AWOL); 11. on March 7, 2017, Complainant was issued a letter of warning for failure to follow instructions; 12. on March 7, 2017, Complainant’s request for assistance to enable him to leave after working eight (8) hours was denied; 13. on April 14, 2017, Complainant was issued a 14-day suspension, dated April 10, 2017; 14. on June 2, 2017, Complainant was issued a Notice of Removal;4 and 15. on June 11, 2018, Complainant received a harassing Facebook message from Postmaster. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. 3 We note that in the agency’s acceptance of his complaint, for many of these claims, it listed “dates to be provided” without specifying the dates the claims occurred. We have added dates from the record where found. 4 For this claim, Complainant alleges an additional basis of retaliation for filing an EEO claim. See Report of Investigation (ROI) at 240. 2020005353 3 Partial Summary Judgment Over Complainant's objections, the AJ assigned to the case granted in part and denied in part the Agency’s August 29, 2018, Motion for a Partial Decision Without a Hearing and issued a decision without a hearing on claims 1-3, 5-7, 10, and 15 on November 25, 2019. In this order, the AJ stated that Complainant had alleged color discrimination but instead had intended race discrimination because Complainant identified a white male comparator. See Order Granting in Part Agency’s Motion for Partial Decision Without a Hearing & Administrative Judge’s Notice of Intent To Dismiss Certain Additional Claims, at 1, n.1 The decision included a Notice of Intent to Issue Summary Judgment on two additional claims (claims 11 and 13) unless Complainant could show why they should proceed to trial. On December 10, 2019, the AJ issued summary judgment on those additional two claims. Claims Decided on Partial Summary Judgment Hostile Work Environment (Claims 2, 3, 5, and 15) In claim 2, Complainant alleges that Postmaster told him she hated his attitude, was going to break him, and that he needed to do what she says when she says it. Report of Investigation (ROI) at 205. He stated she also clapped in his face and said, “chop, chop.” Id. at 206, 225. He added she would call him after hours to blame him for what another co-worker had done. Id. at 225. Complainant maintained Postmaster discriminated against him on the basis of sex because she wanted to show her strength and flex her power over him as a male. Id. at 206. He believed color was a factor because Postmaster would “bother[]” the blacks in the office, then the whites, then go back to the blacks. Id. In claim 3, Complainant states he was falsely accused by Postmaster of wrecking an Agency vehicle between November 29 and December 8, 2016. He asserted the reason was that he was a young black male. ROI at 208. He further stated sex was a factor because Postmaster would not accuse the females in the office of this. Id. In claim 5, Complainant was summoned to Postmaster’s office for discussions about the failure to follow instructions, seven-day suspension, and 14-day suspension. ROI at 211, 488-89. Complainant reported that he felt threatened. Id. He maintained that color was a factor because Postmaster would not treat a co-worker, City Carrier Assistant 1 (white, male), that way. Id. In claim 15, Complainant avers he received a harassing message via Facebook from Postmaster. The message said: Good morning. [Complainant] I wish you would stop with the rumors about you getting terminated because I didn’t like you. I talked with Frank and he said it doesn’t matter that you have a EEO against the [Agency] them your lies that you got to prove [sic]. You didn’t follow my rules so I had to break you. Plus your attitude didn’t help either. Take it as a lesson learned. 2020005353 4 Agency’s Motion for a Partial Decision Without a Hearing (Agy’s Motion for Partial Decision), Exhibit (Exh.) C. The sender appears to be Postmaster, and the date on the message is June 11, 2018, which is described as the date Complainant added Postmaster as a friend on Facebook. Id. There is no indication of when the message was written or sent. Id. Complainant left the employment of the Agency on July 3, 2017. Agy’s Motion for Partial Decision, Exh. B. Disparate Treatment (Claims 1, 10, 6-7, 11, and 13) Complainant maintained that the discipline in claims 1 and 10 led to a 14-day suspension. ROI at 201-02. In claim 1, Complainant received discipline for failure to follow instructions, specifically, for not providing sufficient documentation to be approved for absences. ROI at 201-02. He was treated differently, he submits, because City Carrier Assistant 1 engaged in similar activity but was not disciplined. Id. at 202-03. Complainant also put forward that two other City Carriers (an Asian male and a white female) were disciplined for similar infractions. Id. at 203. According to Complainant, sex was a factor in his case because Postmaster wanted to show, as a woman, that she can handle her own and make an example out of him. Id. at 204. Postmaster declared that, on January 18, 2017, and other dates that month, Complainant failed to show up for work as scheduled. ROI at 478. She stated Complainant also failed to provide acceptable documentation when required to do so. Id. Ultimately, these events led to a 14-day suspension, issued by Supervisor 2 and Acting Supervisor. Id. at 477-79. Postmaster concurred with the decision. Id. In claim 10, Acting Supervisor issued Complainant a seven-day suspension for being AWOL on dates in mid to late January 2017. ROI at 498, 645, 706-07. Complainant claimed Postmaster said the medical documentation in support of his leave requests was insufficient. Id. at 221. According to Complainant, he was treated differently. Id. at 220. As evidence, he offered that City Carrier Assistant 1 missed work in other offices, gave an excuse, and was not penalized. Id. According to the record, Acting Supervisor issued Complainant the seven-day suspension, and Postmaster concurred. ROI at 498-99, 706-07. The suspension noted that Complainant failed to explain why he did not turn in acceptable documentation when he did not return to work on two of the dates in question. Id. at 706. It also mentioned the Letter of Warning (LOW), issued January 7, 2017, as a factor that was taken into consideration in issuing the suspension. Id. at 707. Postmaster declared that Supervisor 2 also issued City Carrier Assistant 1 an LOW for not reporting to work as scheduled and failing to notify management of same. Id. at 500. Postmaster added that Supervisor issued City Carrier Assistant 1 a separate LOW, approximately one month later, for not reporting to work as scheduled and failing to follow instructions. Id. Postmaster concurred in the latter decision. Id. 2020005353 5 In claim 6, Complainant was required by Postmaster to work at various other locations. ROI at 212. He claimed color was a factor because Postmaster did not treat City Carrier Assistant 1 the same way. Id. at 213. He believed sex was a factor because Postmaster was trying to show her toughness. Id. The record shows that working at other work locations was a routine part of Complainant’s job duties. ROI at 801, 802, 822-23. Moreover, Postmaster stated that City Carrier Assistant 1 also had to work at other work locations. Id. at 491. In claim 7, Complainant alleges Postmaster placed him on a stand-by work schedule on numerous occasions. ROI at 214. He maintained that this was not allowed in the contract, but Postmaster told him she made her own rules. Id. She also threatened Complainant with a write- up for failure to follow instructions, he said. Id. According to Complainant, color was a factor because City Carrier Assistant 1 did not have to do this. Id. at 215. Postmaster admitted she was wrong to ask Complainant to call in on one occasion. ROI at 493. She said she was not aware that the contract stated Complainant could not be placed on stand-by or required to call in if he was not scheduled. Id. at 492-93. For not following instructions on that day, Postmaster had issued Complainant an LOW. Id. Complainant filed a grievance. Id. at 493. In that process, management reached an agreement with the union where the LOW was rescinded and expunged; plus, Complainant was paid for his time. Id. In claim 11, Complainant alleges that he was issued a LOW on March 7, 2017, for failure to follow instructions. He maintains that he had clocked out when management told him he had to go to another work site. ROI at 222. Complainant reported that he did not do so because he had to go pick up his son. Id. Complainant contends that City Carrier Assistant 1 would clock out and go home, without facing discipline, showing color was a factor in Complainant’s discipline. ROI at 223. Complainant further submits that sex was a factor because Postmaster wanted to show how much control she has over males. Id. The record is devoid of an LOW issued to Complainant on March 7, 2017. Postmaster and Acting Supervisor both stated they did not issue one on that date. ROI at 501, 657. The record does indicate that Acting Supervisor issued City Carrier Assistant 1 a LOW for failure to follow instructions on March 23, 2017. ROI at 738-39. Postmaster co-signed it. Id. The LOW indicates that City Carrier Assistant 1 did not report to a second work-station at the end of his shift, as Supervisor had instructed. Id. In claim 13, Complainant states Postmaster issued him a 14-day suspension, dated April 10, 2017, for being AWOL. Id. at 236-37; see also id. at 569-71. Acting Supervisor and Postmaster signed off on the suspension. Id. at 569-71. The suspension noted that Complainant’s attendance record was unacceptable. Id. at 569. As proof that color was a factor, Complainant averred that City Carrier Assistant 1 engaged in the same conduct and did not face discipline. Id. at 238-39. Complainant said that sex was a factor because Postmaster was trying to show how tough she was. Id. at 239. 2020005353 6 The record evidence shows that, on January 5, 2017, Supervisor 2 issued City Carrier Assistant 1 an LOW for being AWOL. Id. at 733-34. The record also indicates City Carrier 1 was issued 7- day and 14-day suspensions for unsatisfactory work performance. ROI at 742-46. The former was issued in June 2017, and the latter was issued in July 2017. Supervisor and Postmaster signed off on both suspensions. The AJ’s Decision The AJ granted summary judgment to the Agency on the hostile work environment claims (Nos. 2, 3, 5, and 15). The AJ concluded there was no evidentiary link between the alleged harassing conduct and Complainant’s race or sex. Furthermore, the AJ found Complainant’s own affidavit testimony undermined his race and sex bases. Complainant declared that Postmaster gave others a hard time with respect to their attendance and leave requests, including a white female and an Asian male. Complainant also maintained that Postmaster discriminated against him because she wanted to exercise control over him as a male. However, this explanation is inconsistent with Complainant’s belief that Postmaster treated City Carrier Assistant 1 better than him. As for claim 15, the AJ concluded that even if Postmaster sent the Facebook message in question, it could not have created or contributed to a hostile work environment as Complainant was no longer an employee of the Agency as of July 2017. To the extent Complainant alleged that the Facebook message was direct evidence of reprisal, the AJ decided that claim also failed, as the single message was not materially adverse such that it would deter EEO activity, especially when it was sent 15 months after Complainant filed his EEO complaint and a year after he left the Agency. The AJ also granted summary judgment on the disparate treatment claims (Nos. 1, 10, 6-7, 11, and 13). On claims 1 and 10, the AJ noted, City Carrier Assistant 1 received the same discipline for AWOL as Complainant. The AJ reasoned there was also evidence that Postmaster issued, or concurred in the issuance, of other discipline against City Carrier Assistant 1, including a 7-day suspension on June 6, 2017, and a 14-day suspension on July 10, 2017. The AJ then concluded that this defeated the race basis of Complainant’s claim. The AJ pointed out there was no evidence to support that females had similar attendance issues yet received more lenient treatment. In fact, Complainant put forward that Postmaster gave a hard time to a white female and an Asian male. On claim 6, the AJ noted that City Carrier Assistant 1 traveled to other work stations as much as Complainant did, thus undermining Complainant’s race claim. Moreover, Complainant did not offer evidence on sex being a factor. On claim 7, Postmaster admitted she was wrong to place Complainant on stand-by. However, after Complainant filed a grievance, no disciplinary action was taken. Furthermore, Complainant failed to produce evidence of a link between this action and his race or sex. As for claims 11 and 13, the AJ stated that Postmaster was involved in issuing an LOW and discipline for being AWOL, respectively, to City Carrier 1, undermining Complainant’s race theory. In addition, Complainant offered no evidence of how sex was a factor in either claim. 2020005353 7 The Hearing On July 29, 2020, the AJ held a hearing on the five remaining claims (Nos. 4, 8, 9, 12, and 14). At the hearing, the AJ declared that Complainant had completely withdrawn sex as a basis for all claims. Hearing Transcript (HT) at 8. There is no indication that Complainant challenged this statement during the hearing, when he had the opportunity to do so. Claims Decided Following a Hearing (Claims 4, 8, 9, 12, and 14) In claim 4, Complainant alleges that Postmaster denied his request for mileage reimbursement for trips to other work locations. ROI at 209-210. He acknowledged that he was eventually paid, though for a lesser amount. Id. at 210. Postmaster testified that Complainant had over-calculated his mileage, according to Google Maps. HT at 200-01; see also ROI at 486-87. After meeting with Complainant’s union representative, Postmaster testified, she paid Complainant the mileage that she and the union representative had agreed upon. HT at 203-05. In claim 8, Complainant’s leave requests were denied for January 18, 22, and January 28 through February 6, 2017. ROI at 216. Supervisor 2 denied Complainant’s request of January 18. Id. at 536. Supervisor 2 noted the need for an appointment card or doctor’s note. Id. Complainant testified he presented an appointment card with his leave request, three weeks before the date he wanted leave, and offered a duplicate of that appointment card at trial. HT at 92, 94-96; Hearing Exhibit (Exh.) 2. Complainant stated on the stand that he had gotten a new appointment card because the original that he handed in to management was not in the ROI. HT at 94-96. For the leave request of January 22, Complainant stated in his testimony that he did not request leave on that date. HT at 118. The record indicates that Complainant’s leave request for January 22 was denied by Supervisor 2. ROI at 536. Supervisor 2 also denied Complainant’s leave request of January 28 through February 6. Id. at 537. On the request form, she noted that Complainant had a scheduled break in service5 from February 1 through 6. Id. Complainant acknowledged the dates of this break in service. HT at 117, 130. In claim 9, Complainant claims he was placed on the Deems Desirable list. He maintained that he was not given a reason for it. ROI at 218. He also claimed that white and female employees were not subjected to the same treatment as he was. Id. at 218-19. Postmaster testified that an employee can be placed on that list when he or she “has an unscheduled absence and management deems it desirable to -- for that employee to bring in medical documentation stating that incapacity either for himself or for care of family member.” HT at 218. In her affidavit, Postmaster asserted that Supervisor 2 had placed Complainant on this list. ROI at 497. 5 Complainant confirmed, in his cross-examination at trial, that City Carrier Assistants work 360 days a year and then have a mandatory 5-day “break” in service. HT at 113. He also agreed that he would not be working anyway during his break in service period. HT at 129. He disputed, however, that it was improper to ask for leave during a break in service. HT at 117. Postmaster testified at trial that she believed Supervisor 2 had disapproved this leave request because “during a [City Carrier Assistant’s] break in service, they're not technically on the role. They're actually terminated until they are reappointed.” HT at 212. 2020005353 8 Postmaster testified that this was because of Complainant’s unscheduled absences. HT at 219. In addition, she testified that City Carrier Assistant 1 had been placed on the Deems Desirable list the same day that Complainant was. HT at 219-20. In claim 12, Complainant alleges that the Postmaster of Raeford Post Office (Postmaster 2) harassed him when she denied him assistance after he had worked eight hours. He said Postmaster 2 let a female City Carrier Assistant go home early and had him work instead. ROI at 224-25. According to Complainant, Postmaster 2 did this to bully Complainant. Id. at 225. Complainant did not allege that race was a factor in his affidavit. He also did not offer any evidence on this matter at the hearing. In claim 14, Complainant was issued a Notice of Removal for improper conduct. The record indicates this occurred on May 22, 2017, after Complainant refused to deliver a pivot route twenty days prior. ROI at 445-46, 572-73. Supervisor issued the Notice, and Postmaster was the concurring official. Id. Supervisor declared that she issued the Notice because Complainant violated Employee and Labor Relations Manual (ELM) Sections 665.13 (“Discharge of Duties”); 665.15 (“Obedience to Orders”); and 665.16 “Behavior and Personal Habits.”) Id. at 677. Supervisor also testified that she considered Complainant’s disciplinary history in making this decision. HT at 151, 164-65. Complainant testified that he had to pick up his son on the day in question. HT at 12. He also noted that City Carrier Assistant 1 was treated more favorably for refusing to deliver a pivot route. Id. at 18-19; see also ROI at 240-41. Complainant claims the Agency issued this action in retaliation for his filing an EEO complaint. ROI at 240. Supervisor stated that City Carrier Assistant 1 had been disciplined but not removed; however, she maintained the circumstances were different for City Carrier Assistant 1’s refusal to carry the pivot route. ROI at 678. Namely, City Carrier Assistant 1 had received very upsetting news and was deemed unfit to continue to work on the occasion in question. Id. Supervisor stated that Complainant, on the other hand, was judged to be of sound mind to finish the pivot route and chose not to do so. Id. Supervisor denied color and sex were factors in the decision. Id. at 678- 79. The AJ’s Decision The AJ found in the Agency’s favor on all claims. First, the AJ noted that testimony from Complainant’s co-workers showed that Postmaster and other managers were strict towards all employees, regardless of race. As to the specific claims, on claim 4, the AJ found that the Agency provided a legitimate nondiscriminatory reason. The AJ found Postmaster’s testimony about Complainant’s mileage over-calculation to be credible and consistent with the record evidence. Moreover, Complainant failed to establish pretext. On claim 8, the AJ found Complainant had failed to disprove any of the Agency’s reasons for denying his leave requests. On claim 9, the AJ notes that City Carrier Assistant 1 was also placed on the Deems Desirable list and that Complainant admitted as much in his reply to the Agency’s Motion for a Partial Decision Without a Hearing. On claim 12, the AJ noted that Complainant had not offered evidence on this claim at the hearing. 2020005353 9 Finally, on claim 14, the AJ pointed out that the Agency applied progressive discipline in its decision to remove Complainant. Namely, Supervisor considered Complainant’s January 5, 2017 LOW for being AWOL on December 20, 2016; 7-day suspension, issued February 14, 2017, for being AWOL on January 18, January 30, and January 31, 2017; and 14-day suspension, issued April 10, 2017, for being AWOL on April 1, 2017. All this lead up to and was considered in issuing the notice of removal, dated May 22, 2017, and received June 2, 2017, that arose from an incident in which Complainant refused a pivot route on May 2nd. While Complainant offered evidence to show pretext for all incidents for which he was disciplined-a doctor’s note for the absence on December 20, 2016, that the AJ did not admit into evidence; Complainant’s assertion on the stand that he had a doctor’s note and was not AWOL on January 18; Complainant’s testimony that he was not on the schedule for January 30 and 31, did not know he had to work on April 1, and had to leave work on May 2 to pick up his son-the AJ did not find Complainant’s evidence persuasive. Furthermore, in terms of Complainant’s argument that City Carrier Assistant 1 was treated more leniently, the AJ noted that while City Carrier Assistant 1 was not disciplined some of the time, Complainant, too, at times was not disciplined for infractions. The AJ ultimately found no evidence of pretext on claim 14. After the trial, the Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, regarding partial summary judgment, Complainant does not identify any genuine issues of material fact in dispute. Regarding the AJ’s bench decision, Complainant argues that the AJ did not understand the grievance process and the Agency’s policies and procedures. He further contends he did not have attendance issues that were not absences wrongly changed to AWOL by management. He submits management placed him on the Deems Desirable list, denied absences, and issued punishment in retaliation for his filing discrimination complaints against the Agency. He further maintains he was unfairly terminated. According to Complainant, the AJ’s decision was neither fair nor accurate. The Agency, on appeal, argues that partial summary judgment was appropriate because Complainant failed to establish a prima facie case of discrimination on claims 1-3, 5-7, and 10. As for claim 15, it contends that claim should be dismissed because Complainant was no longer working for the Agency at the time of the alleged Facebook communication. The Agency further submits that Complainant failed to show that the Agency’s actions in claims 11 and 13 were based on Complainant’s color or sex. Regarding the AJ’s bench decision, the Agency maintains that in claims 4 and 8, Complainant did not establish a prima facie case of harassment or show that the Agency’s actions were pretextual. Regarding claims 9 and 12, it argues that Complainant did not establish a prima facie case of harassment. Regarding claim 14, assuming a prima facie claim was established, the Agency contends, Complainant did not show that management’s reasons for removing him were discriminatory and pretextual. It asks the Commission to affirm the AJ’s findings and decision. 2020005353 10 In a separate response Complainant moves to strike as untimely the Agency’s appellate brief, filed October 26, 2020. He notes his appeal was uploaded through the Commission’s portal on September 23, 2020. In its reply, the Agency acknowledges that the Office of Federal Operations (OFO) notified it of the appeal on September 24, 2020. It then argues that the earliest date the appeal was due was October 24, 2020, which was a Saturday. Therefore, it submits, its appeal, filed the following Monday, was timely. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all factual findings following a limited scope hearing that are expressly identified as derived from the hearing by an EEOC AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Rels. Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). All factual findings that are not derived from a hearing or that are not expressly identified as such by the AJ are subject to de novo review. An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, at § VI.A. (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”).” Initial Matters Regarding Complainant’s motion to strike the Agency’s appellate response as untimely, we find that the Agency had until October 26, 2020, to file its reply, pursuant to pursuant to 29 C.F.R. § 1614.403(f). We therefore find that the appeal is timely and deny Complainant’s motion. 2020005353 11 Partial Decision Without a Hearing An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed regarding claims 1-3, 5-7, 10-11, 13, and 15. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant fails to do either. Therefore, we find that Complainant failed to show that there was a genuine issue of material fact in this case. The Commission thus finds that the AJ's grant of summary judgment was appropriate on the afore-mentioned claims. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie 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, n.13; 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, the 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 its actions, 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). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons for its discrete actions were a mere pretext for discrimination or were otherwise based on unlawful motive. We have analyzed claims 1-3, 5-7, 10-11, 13, and 15 under a de novo standard. We have analyzed claims 4, 8, 9, 12, and 14 under the substantial evidence standard. To cite two contentions raised by Complainant on appeal, there is no evidence that management wrongly charged Complainant with AWOL or that his Notice of Removal was issued unlawfully or in violation of Agency practice. 2020005353 12 Upon review of all claims, we find that Complainant failed to show that there was a nexus between the Agency’s actions and his protected bases. Nor did he show that there were similarly situated employees not in his protected groups who were treated differently under similar circumstances. In sum, Complainant has not shown that the Agency's reasons for Complainant’s treatment are unworthy of credence or that discriminatory motivation more likely motivated the Agency's actions. As a result, we find that there was no discrimination. Harassment As to the remaining claims (Nos. 2, 3, 5, and 15), to establish a claim of hostile work environment, 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 class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove his harassment claim, 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 basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The record reflects that the alleged incidents in claims 2, 3, and 5 were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Even assuming that the incidents occurred as alleged, we find Claims 2, 3, and 5, taken together, do not rise to the level of severe or pervasive conduct to constitute a hostile work environment. Furthermore, we find that Complainant failed to show that the Agency’s actions were based on discriminatory animus. As to claim 15, despite the factual uncertainties surrounding the sending of the Facebook message, we note that this message was received on June 11, 2018, which is, more or less, a year after Complainant had left the Agency. Therefore, even assuming the incident happened as Complainant alleged, the Facebook message could not, by definition, severely or pervasively affect Complainant’s work environment. Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment in claims 1, 4, and 6-14, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). 2020005353 13 Complainant's harassment claims are precluded based on the Commission's finding that he failed to establish the actions taken by the Agency were motivated by discriminatory animus with regard to the afore-cited claims. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). Because the record does not support a finding that Complainant was subjected to Agency actions that rose to the level of a hostile work environment, we find that Complainant has not established that he was subjected to harassment, as alleged. 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 finding no discrimination. 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. 2020005353 14 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. 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. 2020005353 15 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merrill O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020005401 Hearing No. 480-2018-00320X Agency No. 4F-900-0254-17 DECISION On August 19, 2020, 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 August 7, 2020, final order concerning his 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant, Q-1, at the General Mail Facility Post Office in Long Beach, California. On August 30, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), color (black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On February 28, 2017, he was issued a 14-day suspension; 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. 2020005401 2 2. On March 23, 2017, he was issued two 14-day suspensions; 3. On a date to be specified, he was not adequately trained; 4. On a date to be specified, his request for an acting supervisor detail was denied and management made derogatory racial comments to him; 5. On dates to be specified, the Supervisor made inappropriate sexual remarks to him; 6. On or around June 2, 2017, he was placed on an indefinite suspension; and 7. On July 19, 2017, he was issued a notice of removal for failure to maintain regular attendance. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On July 15, 2020, the AJ assigned to the matter notified the parties of her intent to issue a decision without a hearing in favor of the Agency. When Complainant failed to respond to the AJ’s notice, the AJ issued the decision on August 3, 2020, as originally proposed. The Agency subsequently issued a final order implementing the AJ’s decision. This appeal followed. Complainant did not submit any contentions in support of his appeal. The Agency requests that the Commission affirm its final order. 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, Aug. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, 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. 2020005401 3 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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). 2020005401 4 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hulda P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005414 Agency No. SB104329 DECISION On September 25, 2020, 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 August 25, 2020, final decision (FAD) 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision with respect to the issue on appeal. BACKGROUND During the relevant time, Complainant worked as a Pharmacy Technician at the Agency’s Brockton Medical Center in Boston, Massachusetts. On September 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, she was subjected to a hostile work environment. In support of her claim of harassment, Complainant indicated that, in relevant part: 1. On or about November 8, 2019, Supervisor looked into Complainant’s car; and 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. 2020005414 2 2. On November 20, 2019, the Human Resource Specialist (HR Specialist) called her a “bully” and accused her of displaying bullying behavior toward Supervisor. The Agency accepted the complaint for investigation. The record revealed the follow information. On or about November 8, 2019, Complainant stated that she received an email that her Supervisor had peered into her car. Complainant filed a report; she stated that she filed the report because she did not know what happened. Record of Investigation (ROI) at 171, 360-61. Supervisor conceded that she looked in Complainant’s car. She reported that, on the day in question, Complainant was parked near her and that she had to walk around the back of Complainant’s vehicle to get to her vehicle. Supervisor said that, when she walked around the back of Complainant’s car, she looked into Complainant’s vehicle. ROI at 187. Chief of Pharmacy Services (Chief) stated that Supervisor reported that she noted that Complainant’s car had Georgia license plates and that Supervisor looked at the front plate, out of curiosity, to see if they were the same. Chief said that Supervisor did not give a reason other than curiosity to look at Complainant’s car. ROI at 276. Complainant said that she called and sent an email to Human Resource (HR) Specialist concerning Supervisor looking into her car because she was concerned about her safety. ROI at 171. Complainant alleged that HR Specialist yelled at her and accused her of being a “bully” because she was displaying bullying behavior toward Supervisor. ROI at 171. Complainant specified that HR Specialist’s statement about her being a bully were racially motivated, as the word “bully” reinforces the stereotype of Black individuals as aggressive. ROI at 172. HR Specialist confirmed that he and Complainant discussed the allegation of Supervisor looking into her car. HR Specialist said that he asked Complainant to explain how she felt that her safety was in jeopardy and that he reminded Complainant that that was not a crime. ROI at 260. HR Specialist alleged that Complainant could not provide him with a reasonable explanation that she feared for her safety. As such, HR Specialist stated that he “assertively informed her that [he] was at a loss of her filing such a frivolous complaint. [He] also asserted that this [had] the appearance of her engaging in bullying tactics against her supervisor.” ROI at 260. HR Specialist contended that he would have taken this position with anyone filing “this type of frivolous complaint.” ROI at 260. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discriminatory harassment as alleged. 2020005414 3 The instant appeal followed. CONTENTIONS ON APPEAL Complainant specifies that she is only appealing the harassment relative to the two specific instances as outlined above. She points to the inconsistencies in Supervisor’s rationale as issues for the Commission to consider in its analysis.2 The Agency asserts that the alleged incidents neither rise to the level of harassment, nor are they tied to a protected class. ANALYSIS AND FINDINGS Standard of Review 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 Chap. 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”). Harassment As to harassment, in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is “sufficiently severe or pervasive to alter the conditions of [a complainant's] employment and create a hostile or abusive working environment.” To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) 2 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s decision regarding the discrete claims listed in the FAD; as such, we need not address these claims in the instant decision. 2020005414 4 there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. To prevail on a claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enf’t Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enf’t Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The evaluation “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). In the instant case, we find that neither Supervisor’s looking into Complainant’s car nor Complainant being called a “bully” by HR Specialist constitute harassment or unlawful retaliation. While Complainant is a member of protected classes, and she was the recipient of unwelcome conduct, in neither case has Complainant offered evidence that either Supervisor or HR Specialist conducted themselves as due to her protected classes. The Commission also finds no evidence, beyond Complainant’s supposition, that Supervisor’s or HR Specialist’s conduct was related to her EEO activity. While the Commission recognizes that Supervisor provided a number of conflicting rationales to various different people, there is no evidence that her conduct was due to race, as opposed to curiosity, aside from Complainant’s speculation. Outside evidence of animus, simple bad behavior does not, in and of itself, provide evidence of discrimination on the part of Supervisor or HR Specialist and Complainant has offered no evidence, aside from her assertions and suppositions. Mere assertions or conjecture that a statement or behavior is discriminatory is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019) Similarly, Complainant provides no evidence that HR Specialist made his comment out of discriminatory intent. HR Specialist stated that his comments were in response to Complainant’s filing a charge he found to be frivolous and that he would have had such a conversation with anyone who had made a charge in similar circumstances. To the extent that Complainant argues that the term “bully” is derivative of the stereotype of African Americans as aggressive, the Commission cannot agree. While the Commission has held that unambiguous racial epithets are consistent with racial harassment, Complainant has not shown that the term “bully” is a race- based derogatory term. See EEOC's Compliance Manual, Section 15 “Race and Color Discrimination,” No. 915.00 (Apr. 19, 2006). 2020005414 5 This singular instance, moreover, does not constitute such severity or frequency to rise to the level of harassment; Shalon C. v. Dep’t of Transp., EEOC App. No. 0120141603 (July 21, 2016) (where the Commission affirmed that when a complainant received demeaning comments by her trainers and coworkers, if not due to protected class, were not, in and of themselves, harassment). As Complainant has not presented evidence that would persuade the Commission to find that either Supervisor or HR Specialist’s conduct was due to her protected classes or in reprisal for prior protected EEO activity, we cannot find that the Agency subjected Complainant to harassment as alleged. 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. 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. 2020005414 6 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. 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. 2020005414 7 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sang B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020005439 Hearing No. 560-2017-00283X Agency No. ARFTLWOOD16SEP04141 DECISION On August 24, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning his 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-0343-11, at the Agency’s Network Enterprise Center (NEC), Business Management Branch, in Fort Leonard Wood, Missouri. On December 14, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Native American), sex (male), age (over 40), and reprisal for prior protected EEO activity under Title VII and the ADEA when he was selected from a pool of peers to be relocated to Joint Base Lewis-McCord (JBLM) 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. 2020005439 2 as a Management Analyst. The Agency subsequently accepted Complainant’s formal complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing; however, on November 21, 2018, the Agency filed a motion for a decision without a hearing. Complainant timely opposed the Agency’s motion. In his opposition, Complainant argued that there were sufficient genuine issues of material fact to preclude the issuance of a decision without a hearing, as there were disputes surrounding the Agency’s articulated reasons for reassigning him. In this regard, Complainant maintained that the Agency conducted the reduction-in-force (RIF) so that the Agency could hire two preferred employees, namely the wife of a NEC manager and another individual. Complainant emphasized that his reassignment was not only in violation of the Office of Personnel Management’s (OPM) RIF rules and regulations but also discriminatory. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s November 21, 2018, motion for a decision without a hearing and issued a decision without a hearing on June 18, 2020. When the Agency failed to issue a final order within forty (40) days of receipt of the AJ’s decision,2 the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. On appeal, Complainant contends that the AJ should not have issued a decision without a hearing, as “[t]here were and still are genuine issues to material facts and credibility…” In so arguing, Complainant continues to maintain that the Agency arbitrarily implemented its RIF procedures and violated the OPM’s rules and regulations on RIFs. As proof of the Agency’s discriminatory intent, Complainant asserts that “[t]he evidence of this case clearly shows that the complainant was discriminated against and subjected to severe emotional and mental abuse.” Complainant emphasizes that the Agency did not have a legitimate, nondiscriminatory reason for its action. Furthermore, Complainant argued that the Agency’s motion for a decision without a hearing should be vacated in its entirety because the Agency’s representative acted unethically during the hearing process in failing to timely comply with the AJ’s orders and submitting falsified email records to create the impression of timeliness. Given these factors, Complainant requests that the Commission remand the matter for a hearing. 2 Approximately two hundred (200) calendar days after the AJ rendered a decision, the Agency issued a final order and served it on Complainant on December 31, 2020. 2020005439 3 The Agency did not file any contentions in response to Complainant’s appeal. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. In so finding, we fully considered Complainant’s contentions on appeal; however, we are nevertheless disinclined to find in Complainant’s favor, as the record fails to persuasively show that the Agency discriminatorily implemented the RIF. As for Complainant’s procedural arguments, we are unable to conclude, based on the evidence before us, that the Agency’s actions during the hearing process were improper or in bad faith. Upon careful review of the AJ’s decision and the evidence of record, 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. 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. 2020005439 4 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. 2020005439 5 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Romeo K.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020005447 Agency No. ARCESAC17AUG02962 DECISION On September 23, 2020, 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 October 18, 2019, final decision concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 was a former federal government employee who applied for two different motor vehicle operator positions and was not referred for either. Report of Investigation (ROI) at 8-9, 60. Complainant asserted that he had reinstatement rights, schedule rights, and disability rights" but was not referred for either position. ROI at 7-17. Complainant complained about his non-referral to the Director, South Pacific Division Civilian Personnel Advisory Center (Director). ROI at 46-8. In response, Director ordered a review of the referral process for both vacancies. ROI at 112-13. 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 2020005447 The Human Resource Specialists (HR Specialists 1 and 2) developed the referral certificates for the two vacancies. ROI at 111. Director stated that for vacancy 1, VA WTKC178435831972168D, HR Specialist 1 developed the referral list. Director noted that the Agency had sufficient veterans found qualified for referral and no non-veterans were referred. ROI at 111-12 and 120. The record indicates that Complainant was not referred for consideration for vacancy 1. HR Specialist 2 developed the referral list for VA WTKC178435831972167, vacancy 2. HR Specialist 2 indicated that Complainant was originally found not qualified for vacancy 2 based on experience. ROI at 119-21. However, upon reexamination, he was found to be qualified and an amended certificate was forwarded to the selecting official including Complainant's name. ROI at 121-23, see also ROI at 81-95 (containing emails between Complainant and HR Specialist 2 explaining the referral process and why, as a non-veteran, Complainant’s resume was not reviewed for vacancy 1). On August 29, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (American Indian), sex (male), disability (mental), and age (78) when: 1. On June 29, 2017, Complainant became aware he was not referred for the Motor Vehicle Operator Position, WG-5703-05, pursuant to vacancy announcements WTKC178435831972168D and WTKC178435831972167; and 2. On or about July 28, 2017, HR Specialist 2 did not fully answer Complainant's emails/questions and refused to review his resume and application regarding the motor vehicle operator position. According to the Agency, during the processing of this complaint, the Agency mistakenly believed that Complainant passed away and the Agency was unable to reach him or identify the executor of his estate. The Agency continued to process the complaint and an investigation was conducted by the Investigator. ROI at 152. The Agency stated that it notified Complainant of the option to request either a hearing before an Equal Employment Opportunity Commission Administrative Judge or a final Agency decision (FAD) based on the evidence in the case file. However, all attempts to contact Complainant were unsuccessful. Id. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency closed his complaint without authorization, incorrectly stating that he was deceased. Complainant states that the Agency continued to send documentation to his old address during the EEO process even after he provided the Agency with his new updated address. 3 2020005447 Complainant also reiterates his reasons for believing that he should have been hired for the vacancies to which he applied. He argues, without evidence, that his qualifications were better than those of three other applicants. He asserts without support that “federal law” states that if a non-veteran applicant had better qualifications than a veteran applicant, the non-veteran should be hired over the veteran. In response, the Agency argues that Complainant’s appeal should be dismissed for untimeliness because it was filed about two and half years after its FAD was issued. The Agency also argues that the appeal was incorrectly filed because a copy was not served on its representative. The Agency asserts that it properly issued its FAD regarding Complainant’s complaint. According to the Agency, it provided the Complainant with a written request to provide relevant information regarding his complaint more than once. The Agency cites to the different dates and identified documents it sent to Complainant via U.S. mail to which he did not respond. The Agency states that Complainant’s failure to receive the documents and otherwise proceed with his complaint were entirely due to his own lack of diligence. The Agency describes in length its efforts at contacting Complainant, stating that the only evidence that Complainant informed the Agency of his new address by letter dated May 20, 2020, which was sent to the wrong office more than two and a half years after the change of address likely occurred. The Agency asserts that as it continued with the adjudication of Complainant’s complaint by issuing the FAD in the absence of contact from him, the fact that it mistakenly believed he was deceased had no prejudicial effect on his complaint. The Agency argues that the FAD correctly found that the Agency did not discriminate against Complainant on his protected bases. The Agency notes that Complainant’s statement in support of appeal does not include any assertions, evidence, or information that would support an inference of discrimination based on those bases. The Agency requests that the appeal be dismissed for untimeliness or, in the alternative, the appeal should be denied, and the FAD affirmed. STANDARD OF REVIEW 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 Chap. 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”). 4 2020005447 ANALYSIS AND FINDINGS Laches The Commission has held that all complainants must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. The doctrine of laches is an equitable remedy under which an individual's failure to diligently pursue their actions could bar their claim. See O'Dell v. Dep’t of Health and Human Servs., EEOC Request No. 05901130 (Dec. 27, 1990). Here, we initially acknowledge the Agency’s detailed description of efforts it took to contact Complainant to provide him with documents for processing his complaint. We also note that the record does not support Complainant’s contention on appeal that the Agency sent documentation to an incorrect address. We note that Complainant failed to provide evidence that he provided the Agency with his new address. Furthermore, our review of the record demonstrates that the Agency tried to communicate with Complainant several times via mail and email and it was Complainant who failed to respond. The record reflects that the Investigator sent the request for an affidavit to Complainant’s previous address, and notified the Agency via email, with copy to Complainant, that the request was returned as undelivered. ROI at 133-38. Complainant did not respond to that email. Here, the Investigator copied Complainant on a critical email and Complainant did not respond. Therefore, Complainant was on notice via email that he needed to contact the agency about submitting an affidavit, but Complainant ignored the email. The record also reflects that Complainant’s last email communication with the Agency was around August or September 2017. ROI at 69, 71-5, 78-83, 85-93. Given the Agency’s repeated efforts to obtain Complainant’s participation in the EEO process and investigation, and Complainant’s failure to do likewise, we find, in the interest of fairness, that Complainant should not be given another opportunity to submit an affidavit for the record. Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993). 5 2020005447 Complainant may establish a prima facie case of discrimination in the non-selection context by showing that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he was not selected for the position; and (4) he was accorded treatment different from that given to persons otherwise similarly situated who are not members of his protected group, or in the case of age, who are considerably younger than him. Complainant v. Dep't of Justice, EEOC Appeal No. 01A04389 (May 16, 2002); Complainant v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). Complainant may also set forth evidence of acts from which, if otherwise unexplained, an inference of discrimination can be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). With respect to the merits of the case, after a review of the record, we discern no reason to disturb the Agency’s decision. As Complainant did not participate during the investigation, we find that he has not proven, by a preponderance of the evidence, that discrimination occurred as alleged regarding the non-selections in claim 1 nor the exchange with HR Specialist 2 raised in claim 2. 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. 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 6 2020005447 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. 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. 7 2020005447 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb P.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020005464 Hearing No. 430-2020-00135X Agency No. IRS-19-1035-F DECISION On September 28, 2020, 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 September 11, 2020, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as an Internal Revenue Agent at the Agency’s Large Business and International Division in Greensboro, North Carolina. Complainant stated that Team Manager performed workload reviews prior to the mid-year and annual performance evaluations. Record of Investigation (ROI) at 56. For his Fiscal Year 2018 annual performance evaluation, Complainant received “exceeds expectation” for every critical job element (CJE) except CJE IIA (Tax Law). ROI at 57, 139. The narrative for Section IIA noted that Complainant, generally, interpreted and applied the tax laws appropriately. 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. 2020005464 2 On one specific case, however, Team Manager found Complainant’s interpretation of Section 162 to be too restrictive. ROI at 144. Complainant and Team Manager exchanged numerous emails concerning this case. ROI at 216-31. Territory Manager stated that an employee must consistently apply the law in all cases to receive a rating above “meets.” ROI at 289. On the December 2019 performance rating, Complainant was awarded an identical rating, to include all CJEs, as his award the previous year. Agency Response Brief at 33, Exhibit 1. As before, Team Manager asserted that Complainant generally interpreted and applied tax laws appropriately. He went on to state that Complainant, at times, had issues with his application of tax law and continued to apply at risk rules after reducing taxpayer stock basis to zero. The evaluation also stated that Complainant was reluctant to stop working the issue even after a discussion with a partnership Small and Medium-Sized Enterprise. Id. Complainant asserted that he deserved a higher rating. He stated that Team Manager did not give him a proper reason for his rating. ROI at 59. Complainant said that he applied relevant tax laws with little or no assistance and opined that he had more knowledge and understanding than subject matter experts, who serve at a higher grade. ROI at 58. Complainant further stated that Team Manager encouraged co-workers, managers, taxpayers, and representatives to disagree with Complainant. ROI at 58. Team Manager countered that Counsel and Industry Practice Networks are independent entities, but Complainant does not like when they disagree with his interpretation or application of law. ROI at 132. Complainant further asserted that Team Manager “takes the taxpayers’ positions even though the taxpayers’ positions are incorrect, unsupported, and/or incomplete.” ROI at 58. Complainant alleged that Team Manager erred in not adhering to policy which he believed was evidence of discrimination. ROI at 56. Complainant stated that, according to policies, Team Manager is supposed to consider Complainant’s positions, feedback, and rebuttal, but that Team Manager shows no interest. ROI at 56. Complaint also stated that he is supposed to be given the opportunity to perform a self-assessment, but due to a furlough from mid-December 2018 through January 2019, and he did not have time to complete a self-assessment.2 ROI at 56. Team Manager disputed this assertion, stating that Complainant was allowed a self-assessment that resulted in a raise in his overall evaluation from a 4.6 to a 4.8. ROI at 133. Complainant contended that Team Manager “did not properly consider my interpretation of tax laws and showed no interest in my interpretation. [Team Manager] did not fairly [evaluate] my case work, skills, and knowledge.” ROI at 56. Complainant stated that Team Manager harassed and discriminated against him by slowing down his work and/or requiring him to discontinue working on an issue “rather than giving me credit for my interpretation of the tax laws and allowing me to properly resolve the issues.” ROI at 57. 2 We note that, in this argument, Complainant alleged a breach of the collective bargaining agreement (CBA). The proper forum to raise a claim regarding a violation of the CBA is through the grievance process under the CBA or before the Federal Labor Relations Authority. See Simensen v. U.S, Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002). 2020005464 3 Team Manager refuted this assertion, claiming that he told Complainant to stop working on issues when directed to do so by Agency counsel or industry experts. Team Manager noted that Complainant did not like receiving direction from his manager. ROI at 131-32. Complainant identified two individuals, Co-Worker 1 (CW1), a white, non-Christian male, and Co-Worker 2 (CW2), a white, Christian male, whom he argued, worked directly or indirectly with Team Manager against him so that CW1 and CW2 would receive a higher than or similar overall ratings as and more opportunities than Complainant. ROI at 61-2. CW1, as noted by Team Manager, was a Grade 14 senior agent, a different position than Complainant held. ROI at 134, 271. CW2 held an equivalent position and obtained an “exceeds” in CJE IIA; however, he scored a “meets” rating on CJE IVB and CJE VA, lower than Complainant’s scores on those CJEs. ROI at 139, 264. Territory Manager contradicted that CW1 and CW2 got more opportunities, noting that Complainant was given the opportunity to talk to Territory Manager, and that Complainant took an opportunity in Raleigh, North Carolina, in 2019. ROI at 290. On July 9, 2019, Complainant filed an EEO complaint, and amended this complaint on January 6, 2020, alleging that the Agency discriminated against him on the bases of race (African- American), sex (male), religion (Baptist), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On January 30, 2019, Complainant received an annual appraisal (the “2018 Appraisal”) containing a lower rating than he deserved on Critical Element (CJE IIA. Tax Law); and 2. On December 16, 2019, Complainant received a “departure” and annual appraisal (the “2019 Appraisal”) containing a lower rating than he deserved for a Critical Job Element (CJE IIA. Tax Law). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 11, 2020, motion for a decision without a hearing and issued a decision without a hearing on August 12, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant states that the AJ did not properly consider his claims of retaliation based upon suspicious timing. He further asserts that the Agency did not bear its burden of production regarding retaliation. Complainant alleges that the AJ did not properly address his claims, as Complainant is not challenging his overall rating, rather he is challenging his rating to CJE IIA. 2020005464 4 Complainant, finally, charges that the AJ was improper in the evidence that the AJ did and did not allow. Complainant appears to raise the issue, in his brief, that the Agency inhibited his ability to participate in the EEO process regarding additional claims.3 The Agency claims that Complainant has not established a prima facie case for discrimination. Even if Complainant has established such a prima facie case, they argue, Complainant has not offered evidence that the Agency’s legitimate, nondiscriminatory reason for his performance rating was a pretext to discrimination. ANALYSIS AND FINDINGS Standard of Review 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 Emp. Opportunity Mgmt. Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s (AJ) determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 3 A review of the record reflects that this issue was not counseled. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, only the claims as specified on the AJ’s decision will be addressed in this decision. 2020005464 5 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant asserts that the AJ excluded specific evidence during the pre-hearing process. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Just., EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). As Complainant has not provided any evidence excluded by the AJ, the Commission cannot determine whether any such evidence would be outcome dispositive. As such, to reverse based upon such excluded evidence would be to usurp the role of the AJ, and the Commission declines to do so here. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant meets the prima facie case for race and retaliatory discrimination, we now turn to the Agency to articulate a legitimate, non-discriminatory reason for its actions. We find that it has done so here. 2020005464 6 Specifically, the Team Manager pointed to mistakes that Complainant made in his legal application to specific cases for both performance reviews, and Territory Manager asserted that more consistent application of tax law was required for a higher rating. As such, Team Manager had a legitimate non-discriminatory reason to afford, and Territory Manager had a legitimate non-discriminatory reason to approve, Complainant’s “meets” rating regarding CJE IIA. We now turn to Complainant to establish that the Agency’s reason constituted pretext for discrimination. Complainant asserted that the Agency did not follow a number of procedures, including agreed-upon procedures set between the Union and the Agency. Even if this is the case, there is no evidence that any error or mistake on the part of the Agency in this regard is a pretext for discrimination. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Even if an agreement was present that was not fulfilled, Complainant has not provided sufficient evidence that this was retaliatory, as opposed to merely poor management or mistake. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus). In this case, there is no corroborated evidence of unlawful motivation for the Agency’s actions. Complainant also argued that his rating should be higher because his work product was worthy of it. He stated that he worked areas of tax law that co-workers will not work and do not understand as well as he does. Complainant provides no proof for this outside of his own assessment of his abilities. As such, we find that Complainant failed to meet his burden of proof by a preponderance of the evidence that there was discriminatory intent in Team Manager’s decision to give Complainant a “meets” rating for CJE IIA in either 2018 or 2019. Harassment Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994); see also EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Complainant's harassment claim is precluded based on our finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 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 decision to implement the AJ’s decision finding no discrimination. 2020005464 7 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). 2020005464 8 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerry V.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020005513 Hearing No. 570-2018-00916X Agency No. IRS-18-0113-F DECISION On September 30, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 29, 2020, final order concerning his 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. At the time of events giving rise to this complaint, Complainant worked as a Supervisory Tax Law Specialist at the Agency’s Large Business and International (LB&I) Division in Washington, D.C. On January 10, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Black) and national origin (Ethiopian) when on November 14, 2017, Complainant was not selected for the position of Program Manager (Overseas Operation) posted under Vacancy Announcement Number 17CS6-LBM0672-0340-01-TP. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (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. On July 19, 2019, the Agency filed a motion for summary judgment. 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 2020005513 On July 31, 2019, Complainant filed an opposition to the Agency’s motion. On August 12, 2019, the Agency filed a reply. After consideration of the entire record, including the ROI, the submissions, and documentary evidence in the case file, and viewing the facts in the light most favorable to Complainant, the AJ determined that summary judgment was appropriate. In reaching her decision, the AJ noted statements provided by all three interview panel members that they agreed that Selectee (white, American) was the superior candidate. Specifically, they unanimously stated that Selectee performed better in the interview based on the detailed answers that he provided in the interview that discussed his experience and success in LB&I, and in other supervisory capacities. In contrast, the AJ observed that Selecting Official stated that Complainant’s interview responses were less detailed and did not include as many examples of leadership experience. The AJ stated that while Complainant disputed that Selectee was the superior candidate, he failed to set forth any facts or evidence. Furthermore, the AJ did not find any evidence in the record to demonstrate that the Agency’s reasons are false or pretext for discrimination. The AJ noted that it was undisputed that the interview panel agreed that Complainant was a well-qualified applicant. However, the AJ found that Complainant had not demonstrated that his qualifications were plainly superior to Selectee’s. Ultimately, the AJ noted that an employer has broad discretion to set policies and carry out personnel decisions, and such decisions should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Therefore, the AJ granted the Agency’s motion for summary judgment. 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, Aug. 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 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. 3 2020005513 Here, however, Complainant has failed to establish such a dispute. 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 the parties’ 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. 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). 4 2020005513 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dewey R.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 2021000156 Agency No. FWS-19-0815 DECISION On October 8, 2020, 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 September 11, 2020 final decision concerning his 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 Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d). BACKGROUND During the relevant time, Complainant worked for the Agency as a Maintenance Worker, WG- 4749-7, in Errol, New Hampshire. On December 10, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Native American), sex (male), and reprisal for prior protected EEO activity 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. 2021000156 2 1. From January 15, 2015 to the present, the Agency failed to provide Complainant with opportunities to upgrade his wage grade pay level or compete for promotions; and 2. From January 15, 2015 to the present, the Agency did not compensate Complainant at the same wage grade pay level as other employees performing the same work. Following its investigation of Complainant's claims, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, 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 him to discrimination as alleged. The instant appeal followed. 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”). Complainant’s Request for Default Judgment On appeal, Complainant requests that the Commission sanction the Agency by a default judgment due to its failure to issue the final agency decision in this matter within 60 days of his request for it as required by EEOC Regulation 29 C.F.R. § 1614.110(b). The record indicates that the Agency received Complainant's request for a final decision via email on May 1, 2020. The Agency's final decision was issued just over four months later on September 11, 2020. After careful consideration of the arguments of both parties, although we find that the Agency failed to timely issue its final Agency decision, the two-month delay does not warrant a default judgment sanction under the particular circumstances presented here. In reaching this conclusion, we note, among other things, that Complainant did not provide evidence showing he was prejudiced by the Agency’s delay in issuing its decision. See Anthony M. v. Dep't of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020). Title VII Claims 2021000156 3 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (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. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant asserted that he believed that he regularly performed higher-level duties that were not a part of his Maintenance Worker position description. Complainant explained that these included working as a heavy equipment operator, as well as doing carpentry, electrical work, welding and vehicle maintenance. As such, Complainant argued that his WG-7 position description did not accurately reflect the duties he actually performed or the pay he should have received. In an effort to upgrade his position, Complainant requested an audit of his position. However, on August 16, 2019, Complainant was notified that his request for the desk audit had been denied. Complainant alleges that other Agency employees received higher pay for performing the same work and that he was prevented from competing for higher level positions because the Agency failed to advertise vacant positions. Here, we find the Agency’s management witnesses articulated legitimate, nondiscriminatory reasons for the disputed actions. While conceding that Complainant’s position may well need to be upgraded, witnesses explained that the Agency was in the process of standardizing Maintenance Worker position descriptions across the region as the Maintenance wage grade positions had evolved without consistency or reasoning. It was also noted that Human Resources was experiencing some difficulty in completing the standardization process quickly due to the numerous position descriptions that needed to be reviewed. Once the standardization process was completed, officials told Complainant that his concerns would be addressed. 2021000156 4 There is no evidence whatsoever to support a finding that the creation of Complainant’s position description, the assignment of his duties, or the denial of his request for a desk audit were based in any way on his race, sex or in reprisal for EEO activity. In addition, Complainant presented no evidence to support his claim that he was denied the opportunity to apply for identified higher- graded positions because they were not competitively advertised. Equal Pay Act Claim Regarding his Equal Pay Act claim, in order to establish a prima facie case Complainant must show that he received less pay than an employee of the opposite sex, for equal work - work that required equal skill, effort and responsibility under similar working conditions. See Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974); see also 29 C.F.R. § 1620.14(a); EEOC Compliance Manual, Section 10-IV-B. Here, the Agency was correct in finding Complainant failed to prove even a prima facie Equal Pay Act violation because he did not establish that any employee of the opposite sex was paid higher wages for equal work. While Complainant did assert in his affidavit that he believed there was a female wage grade employee within his region being paid more money for the same work, he failed to provide any evidence to support this claim or even identify the employee. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we find AFFIRM the Agency's final decision finding of no discrimination or unlawful retaliation. 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). 2021000156 5 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. 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. 2021000156 6 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stefan C.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021000158 Agency No. DOS-0444-19 DECISION On September 22, 2020, 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 August 24, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND During the relevant time, Complainant worked as a Regional Financial Specialist at the Agency’s Consulate General in Frankfurt, Germany. Complainant began his employment with the Agency in June 2005, when he was 45 years old Record of Investigation (ROI) 1 at 218. He acknowledged receipt of the employment handbook, in writing, on the June 13, 2005. ROI 1 at 218. Complainant stated that, from the beginning of his employment, all of the documents associated with his employment stated that, if an employee’s age is 45 years or older on their date of hire, the employee is not eligible for the Defined Benefit Plan (ERGO) retirement plan. ROI 1 at 51; ROI 4 at 2. 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. 2021000158 2 Complainant said that he met with Human Resource Assistant from Berlin (HR Assistant) at least once between 2010 and 2012 and that HR Assistant provided documentation supporting exclusion due to age pursuant to German law. ROI 1 at 48. Complainant asserted that he disagreed with this issue numerous times but had no success in being included in the ERGO program. ROI 1 at 50. Supervisory HR Assistant stated that the Agency closed the ERGO retirement program for all new employees hired after January 25, 2015. ROI 2 at 4. Effective March 31, 2019, employees who were hired after January 25, 2015, or were excluded from participation in ERGO, were allowed to participate in a Direct Contribution Retirement Plan (DC Plan). ROI 1 at 54, 113, 115; ROI 2 at 2. Employees who already participated in ERGO were grandfathered in. ROI 1 at 114. The Agency notified Complainant that he would be automatically enrolled in the DC Plan unless he specifically opted out; Complainant did not opt out of the DC Plan. Complainant was aware that there would be no retroactive payments. ROI 1 at 54; ROI 4 at 2, 203. Senior HR Officer stated that no employees received retroactive payment under the DC Plan. ROI 4 at 5. Supervisory HR Assistant stated that there was no legal mechanism to award retroactive payment; Senior HR Officer specified that the DC Plan was not implemented with retroactive pay and it was not discussed in the drafting of the plan. ROI 2 at 119-20; ROI 4 at 5. Complainant stated that he should have retroactive payments because his exclusion from ERGO was discriminatory, based upon age. ROI 1 at 54. Complainant provided the identity of a co-worker (CW), who began his employment the same day as Complainant. CW1 was under the age of 45 at the time of hire and was allowed to participate in the ERGO retirement plan. ROI 1 at 51. Complainant did not identify any employee who received retroactive pay under the DC Plan. Senior HR Assistant stated that no employee received retroactive pay. ROI 2 at 121. Complainant stated that on July 17, 2019, he received a printout of his estimated retirement payout beginning at the age of 67. ROI 1 at 3. He charged that including him in the DC retirement system, without retroactivity, did not remedy his exclusion from the ERGO system. ROI 1 at 3. He stated that he should always have been eligible to participate in the ERGO system and that he should be made whole. ROI 1 at 3. On July 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (59) when, on May 17, 2019, he was denied retroactive payment into his retirement plan for his prior 14 years of service. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2021000158 3 CONTENTIONS ON APPEAL Complainant contends that he was excluded from participating in the ERGO plan due to discriminatory animus. He points to CW, who has the same job title and grade, who was allowed to enroll in ERGO after the five-year vesting period. Complainant notes that the only difference in CW and himself are their ages. 2 The Agency argues that Complainant has not established a prima facie case for age discrimination. ANALYSIS AND FINDINGS Standard of Review 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 Chap. 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”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 2 We note that to the extent Complainant argued that the ERGO retirement plan was discriminatory, any events related to the implementation of the ERGO retirement plan are 14 years old, are not enumerated claims, and are not before the Commission. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, the implementation of the ERGO retirement plan will not be addressed in this decision. 2021000158 4 Assuming, arguendo, that Complainant meets the prima facie case for age discrimination, we now turn to the Agency to articulate a legitimate, non-discriminatory reason for its actions. We find that it has done so here. The DC Plan did not begin until March 31, 2019. Senior HR Officer specified that the DC Plan was not implemented with retroactive pay; retroactive pay was never discussed in the drafting of DC Plan. As such, there was no legal mechanism by which the Agency could award Complainant retroactive benefits. We now turn to Complainant to establish that the Agency’s reason constituted pretext for discrimination, which he has not done. Complainant, himself, acknowledged that he was aware that no retroactive payments would be made under the DC Plan. Senior HR Officer confirmed that no employees received retroactive payment under the DC Plan. As there is no one that Complainant can point to who was treated differently under the DC Plan, and there is no evidence that the Agency negotiated or implemented the DC Plan with discriminatory purposes, the Commission cannot find that the Agency acted with discriminatory animus when Complainant was not provided retroactive benefits under the DC retirement plan. 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 decision finding no discrimination. 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 2021000158 5 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. 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. 2021000158 6 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jene M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000224 Hearing No. 520-2019-00661X Agency No. HS-TSA-00094-2019 DECISION On October 9, 2020, 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 September 4, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an SV-0344-F Program Assistant at the Agency’s Newark Field Office in West Orange, New Jersey. On February 22, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), disability (mental), age (born in 1964), and reprisal for prior protected EEO activity (the instant EEO complaint) 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. 2021000224 2 1. On October 16, 2018, Complainant was denied telework and was forced to apply to the Reasonable Accommodation Program; and 2. On December 31, 2018, Complainant was forced to apply for disability retirement. 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 (EEOC AJ). Complainant requested a hearing. The EEOC AJ granted the Agency’s motion to dismiss Complainant’s hearing request, finding that Complainant’s claim of forced retirement/constructive discharge was a mixed-case complaint. The EEOC AJ remanded the complaint to the Agency, and 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 as alleged. The Agency provided Complainant with appeal rights to the EEOC on claim (1) and with appeal rights to the Merit Systems Protection Board (MSPB) on claim (2). Complainant appealed claim (1) to the EEOC and appealed claim (2) to the MSPB. On December 17, 2020, an MSPB Administrative Judge (MSPB AJ) issued an initial decision dismissing Complainant’s MSPB appeal for lack of jurisdiction. The MSPB AJ’s initial decision became final on January 21, 2021. ANALYSIS AND FINDINGS A mixed-case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). The complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address. Id. If a complainant is dissatisfied with the Agency's final decision on a mixed-case complaint, the complainant may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the Agency's final decision. 29 C.F.R §1614.302(d)(1)(ii). As an initial matter, we note that the underlying EEO complaint should have been bifurcated, as claim (1) is a non-appealable action, meaning it cannot be appealed to the MSPB due to lack of jurisdiction. See 5 C.F.R. § 1201.3(a). Complainant had the right request a hearing before an EEOC AJ on claim (1). See, e.g., Chasity v. Dep't of Homeland Sec., EEOC Appeal No. 0120140557 (Nov. 4, 2016) (agency should have bifurcated non-mixed allegations from mixed case allegations, issuing final decision with appeal rights to MSPB only for mixed case allegations and notifying complainant of right to request an EEOC hearing for the non-mixed allegations). Therefore, the AJ erred in dismissing Complainant’s hearing request for claim (1). 2021000224 3 After the EEOC AJ dismissed the hearing request, the Agency designated claim (2) as a mixed- case complaint and provided Complainant appeal rights to the MSPB. In MSPB Docket No. PH- 0752-21-0010-I-1 (Dec. 17, 2020), the MSPB AJ dismissed Complainant’s appeal for lack of jurisdiction, reasoning that Complainant did not establish that her retirement was involuntary and, as such, did not have a claim within the MSPB’s jurisdiction. The Commission's regulations governing the processing of mixed cases require that, should the MSPB dismiss an appeal on a mixed case complaint for lack of jurisdiction, the Agency is required to recommence processing the matter as a non-mixed case. 29 C.F.R.§ 1614.302(c)(2)(ii). Because the MSPB AJ dismissed Complainant’s appeal, claim (2) should now be processed as a non-mixed case. Complainant requested a hearing before an EEOC AJ for both claims (1) and (2), and her hearing request was improperly dismissed with respect to claim (1). Therefore, we find that both claims (1) and (2) should be remanded to the appropriate EEOC Hearings Unit. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final decision finding no discrimination and REMAND the matter to the Agency for further processing in accordance with the ORDER below. ORDER Within thirty (30) calendar days from the date this decision is issued, the Agency shall submit a renewed hearing request on behalf of Complainant, as well as the complaint file and a copy of this appellate decision, to the Hearings Unit of the EEOC’s New York District Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the hearing request and complaint file have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaints in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2021000224 4 If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021000224 5 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2021000224 6 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbara C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021000289 Agency No. 4J-460-0086-11 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 17, 2020 final action concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Letter Carrier at the Agency’s Michigan City Post Office in Michigan City, Indiana. On September 1, 2012, Complainant filed an EEO complaint alleging discriminatory harassment by the Agency on the basis of disability and in reprisal for prior EEO activity when: 1. On March 2, 2011, Complainant was threatened with being placed off the clock; 2. On March 23, 2011, during a Plan 5 talk, Complainant’s name was not spoken but the issue being addressed with all employees solely concerned Complainant’s conduct; 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. 2021000289 2 3. On March 31, 2011, Complainant was subjected to two investigative interviews; 4. On April 1, 2011, Complainant was respected, spoken to in a condescending tone, accused of stealing, and her clock rings were altered; 5. On April 18, 2011, Complainant was issued a Letter of Warning for unacceptable conduct, subsequently reduced to an official discussion; 6. On June 5, 7, 11, 12, 13, and 25, 2012; July 5, 17, 24 and 27, 2012; August 2 and 4, 2012; September 11, 13, and 21, 2012; and October 3 and 9, 2012, Management disapproved Complainant’s PS Form 3996, Carrier-Auxiliary Control Request; 7. On June 12, 14, 23 and 30, 2012, July 24 and 28, 2012; August 4, 2012; September 17 and 24, 2012; and October 1, 2012, Management interfered with Complainant’s work performance and bullied and intimated her; 8. On June 30, 2012 and July 5, 2012, Management disapproved Complainant’s PS Form 3971, request for leave and required Complainant to provide medical documentation for her leave requests; 9. On June 13, 2012 and July 24, 2012, Management instructed Complainant to curtail mail; 10. On June 13, 2012, July 24 and 28, 2012, Management instructed Complainant to carry pivots from another route; 11. On June 14, 2012, Management gave Complainant conflicting instructions; 12. On June 23, 2012, Management bullied and intimidated Complainant when she objected to using hostile union official (name hostile union official) as a representative; 13. On June 27, 2012, Complainant notified Management an employee altered Complainant’s case equipment and placed a plastic tray behind passenger seat; 14. On June 30, 2012, September 1, 12, and 24, 2012, Complainant was subjected to a Pre- Disciplinary Interview (PDI); 15. On July 10, 2012, Complainant notified Management of mail left in the postal vehicle the day before and Management took no action; 16. On July 19, 2012, Complainant’s supervisor humiliated her when he responded rudely to her questions about the Stand-Up Talk; 2021000289 3 17. On July 2, 2012, Complainant’s supervisor was instructed not to provide Complainant copies of documents obtain for the PDI; 18. On July 5, 2012, Complainant was required to submit a second 3971 (Request for or Notification of Absence); 19. On July 23, 2012, Management issued Complainant a Letter of Warning for failure to follow instructions; 20. On August 3, 2020, Management harassed Complainant about submitting PS Form 1571 Undeliverable Mail Report to document mail left by co-worker; 21. On August 4, 2012, Management ignored Complainant’s medical restrictions and would not allow Complainant to go home; 22. On August 6, 2012, Management would not allow Complainant time to discuss her concerns with him; 23. On August 22, 2012, Management denied Complainant’s change of schedule request; 24. On August 22, 2012, Complainant was subjected to an employee’s verbal abuse when he said “kiss my ass;” 25. On August 27, 2012, Management subjected Complainant to a hostile work environment when required her to interact with a male employee; 26. On September 11, 2012, Management followed Complainant into the women’s locker room; 27. On September 11, 2012, Management failed to provide a safe environment when Complainant was subjected to co-workers using profanity on the workroom floor; 28. On September 17, 2012, Complainant was charged .53 hours of Leave Without Pay (LWOP); 29. On September 19, 2012, Complainant was issued a Letter of Warning; 30. On September 18, 2012, Management ignored Complainant’s submission of PS Form 1767 Report of Hazard Unsafe Condition or Practice; 31. On September 24, 2012, Management falsely accused Complainant of conduct unbecoming of a postal employee and solicited statements from co-workers; 2021000289 4 32. On September 28, 2012, Management altered and falsified Complainant’s clock rings; and 33. On October 13, 2012, Management notified Complainant of her leave request submitted on January 19,2 012. Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request on July 6, 2020. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant submitted a brief on appeal. ANALYSIS AND FINDINGS To prove her harassment claim, Complainant must establish that she 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 basis - in this case, her disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). Complainant asserts she has been diagnosed with carpel tunnel, cervical degenerative disease, arthritis, sciatica, tenosynovitis in both thumbs, and sprain/strain neck. As a result, she has a number of medical restrictions at work, including lifting (no more than 5 lbs.) and walking limitations, as well as only working 8 hours per day. For the most part, management witnesses confirmed that they were at least generally aware of Complainant’s medical conditions and limitations. With regard to her retaliation claim, the record confirms that Complainant had filed several EEO complaints in the past. During the relevant time, Complainant was also a union steward and had represented several other employees in their EEO complaints. Responsible management officials in the instant case had varying degrees of awareness of this protected activity. During the investigation, several responsible management officials articulated legitimate, non- discriminatory reasons for many of the actions Complainant proffered in support of her harassment claim. Complainant’s supervisor (“S1”) was not aware of Complainant being threatened with being placed off the clock on March 2, 2011. S1 acknowledged he not remember much of the “Plan 5” talk that Complainant asserts took place on March 25, 2011. 2021000289 5 However, he explained if Agency management attempted to correct a concern with an employee, the Agency does not embarrass the employee in the presence of others by naming them. Regarding Complainant’s two investigative interviews, S1 explained that Complainant took information cards from another carrier’s case and Complainant failed to write a required statement concerning an accident. The record reflects that the Agency uses an official form called an “information request” that union stewards like Complainant were supposed to use to in order to obtain information from management to process a grievance. Complainant failed to follow this rule. S1 said that Complainant also failed to follow S1’s instructions when S1 asked her for a statement concerning a fall she had while on her route. S1 noted that management asks for these statements because the statements are needed to process accident reports. Regarding Complainant’s allegation that she was subjected to harassment when management disapproved her PS Form 3996, Carrier-Auxiliary Control Request. S1 said that Complainant had one of the lightest routes in the Michigan City Post Office, but she requested auxiliary assistance on her route at least three out of five days per week, more than any other carrier in Michigan City including other carriers that also had 8-hour restrictions. S1 stated that Complainant’s route did not require more than 8 hours on the dates in question. Further, S1 stated he may have disapproved Complainant’s 3996 request, but did not require Complainant to provide her medical documentation. S1 stated that on June 13, 2012, July 24 and 28, 2012, Management instructed Complainant to carry pivots from another route because her route did not equate to 8 hours for the day.2 On June 27, 2012, Complainant notified management that an employee altered her case equipment and placed a plastic letter tray behind the passenger side of her Long-Life Vehicle (LLV). Thereafter, S1 asked the named employee if he had altered Complainant’s case equipment and placed a plastic tray behind the passenger side of her LLV, he denied taking such action. In addition, there were no witness to the alleged incident. S1 stated that on July 10, 2012, Complainant notified management of mail in the postal vehicle the day before, but Management took no action. S1 explained that based on an investigation, there was no way to pinpoint when mail was left in the truck by Complainant or another carrier. Regarding Complainant’s claim that on July 19, 2012, S1 humiliated her when he responded rudely to her questions about the Stand-Up Talk, S1 asserted that he did not humiliate Complainant and that Complainant simply did not like his answer to her question. On July 13, 2012, Complainant was required to submit a second request form for an absence that occurred on July 5, 2012, and S1 explained to Complainant if she was planning to leave, he would need medical documentation for the day in question. 2 The record reflects that a “pivot” is mail from another carrier’s route, typically First and Second-Class mail that has to be delivered that day. 2021000289 6 A second supervisor (S2) stated that she conducted a pre-disciplinary (PDI) interview with Complainant on June 30, 2012, because Complainant failed to follow instructions on June 13, 2012, when she failed to deliver her route and a pivot from another route within her 8 hours restriction. On September 1, 2012, S2 conducted a PDI interview with Complainant because she failed to follow instructions when she went to her personal vehicle while on the clock, without permission. On September 12, 2012, she conducted the PDI interview with Complainant because she found Complainant sitting in the women’s locker room on an unauthorized break on September 11, 2012, when she should have been working. On September 24, 2012, S2 conducted the conducted a PDI interview with Complainant because management received a statement from a named employee regarding Complainant’s comments to her while she was performing her letter carrier duties. On October 1, 2012, S1 conducted an investigative interview with Complainant because of a complaint he received from a letter carrier. The letter carrier’s husband is a police officer and he informed his wife that Complainant approached him in the Michigan City Post Office parking lot and asked if he knew named letter carrier and indicated he was a “creep” or a “jerk.” Because S1 received a complaint, he was obligated to conduct an investigative interview with Complainant. S1 did not issue any discipline as a result. S2 stated that once Complainant provided documentation to support her July 5, 2012 absence, she merely requested that she resubmit her PS Form 3971 because she could not find the copy that S1 initially disapproved. Complainant submitted the new 3971 and S2 approved her leave request. On June 13, 2012, S2 scheduled Complainant to carry her assignment on route 1 and an additional 20 minutes on route 29 which combined, would have totaled 8 hours. She instructed Complainant to curtail some of her mail in order to carry a pivot on another route, but Complainant objected to these instructions because she believed she had enough mail on her own route. However, Complainant called the facility at 2:15 p.m. claiming that she could not complete her assignment. Because Complainant failed to follow her instructions, S2 conducted an investigative interview with her. During the investigative interview, Complainant failed to explain why she did not complete her assignment as she could not remember what she did on June 13, 2012. Subsequently, S2 determined to issue Complainant disciplinary action for failure to follow instructions. Regarding Complainant’s claim that on August 4, 2012, management did not allow her to leave early, S2 noted that Complainant called the office from her route around 1:45 p.m. stating she needed to leave early because of the heat. She instructed Complainant to bring her remaining mail back to the office and go home. Complainant arrived at the office at approximately 2:05 a.m. However, she complained S2 did not allow her to leave immediately as S2 issued her a Letter of Warning. The record reflects that Complainant left work approximately a half hour early and less than 30 minutes after she arrived in the office from her route. 2021000289 7 With respect to Complainant’s allegations that on August 22, 2012, she submitted a PS Form 3189 Request for Change in Schedule for Personal Convenience to S1 on August 22, 2012 for the upcoming holiday. Complainant signed her own request where the union stewards should sign, which was improper, as Requests for Change of Schedule must be approved by a certified union steward. S1 determined that he could accommodate Complainant’s request, he informed her that he would approve her request, but she had to have her request signed by the appropriate union steward, who was the certified union steward for the Michigan City Post Office. The record reflects the union steward signed Complainant’s request and there was no verbal interaction between the employees. On September 17, 2012, Complainant was charged .53 hours LWOP. She failed to sign the “no lunch” list on September 17, 2013, and as a result, she was charged with.53 hours of LWOP because she did not follow the proper procedures. The District Resolution Team agreed that Complainant had failed to follow the procedure. Prior to August 28, 2012, a carrier was caught stealing gift cards out of the mail when she took them from the Post Office to her personal vehicle on the clock. As a result of the carrier’s activity, all carriers were instructed during a Plan 5 talk that they would not be permitted to go to their personal vehicles while on the clock without asking management for permission. On August 27, 2012, Postmaster approved Complainant for an hour of EEO time on the clock on August 28, 2012. S1 instructed Complainant to take her hour of EEO time at the end of the day after she delivered her route. On the day in question, S1 observed Complainant coming from her personal vehicle in the parking lot at 1:30 p.m. and she did not have permission to do so. Since Complainant failed to follow the instructions from the Plan 5 talk, S1 conducted an investigative interview with Complainant on September 1, 2012. During the interview, Complainant claimed she does not recall the details of the date in question. As a result, S1 issued Complainant a Letter of Warning for failure to follow instructions. S1 explained that on September 24, 2012, he held an investigative interview with Complainant because one of the clerks reported to management that Complainant approached on her route while the clerk was not at work and became loud. As a result, S1 conducted an investigative interview with Complainant and obtained a statement from the clerk. However, S1 did not move forward with any discipline. On September 15, 2012, the NALC National Business Agent (NBA), sent an email notifying Management and Labor Relations that he was certifying Complainant to represent an employee (E1) at the Michigan City Post Office as she was not an official union steward at the time. On September 19, 24, 25, and 28, Complainant represented E1 for the purposes of her grievances and used either time codes 613 or 632 as management at the Michigan City Post Office instructed and was initially being paid by the Michigan City Post Office. On September 28, 2012, S1 informed Complainant that a named Labor Relations repesentive instructed that she be placed in an LWOP status for the time she had been in union time (code 613) with the employee. 2021000289 8 Labor Relations interpreted NBA’s certification of Complainant as falling under Article 17.2.D of the National Agreement and further advised that Complainant would be paid by the union, not the Postal Service, for her time spending representing E1. At the direction of Labor Relations, S1 changed her clock rings. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that Complainant’s supervisors were motivated by discrimination towards her disabilities or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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). 2021000289 9 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. 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. 2021000289 10 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jillian B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021000318 Hearing No. 480-2018-00626X Agency No. 4F-927-0003-18 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 9, 2020 final action 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant was employed as Health and Resources Management Specialist (EAS-16). However, Complainant was on a higher-level detail or temporary assignment to In-Plant Support as an Operations Support Specialist (EAS-17) at the Agency’s Santa Ana District in Industry, California. On October 30, 2017, Complainant returned to her position at Health and Resource Management (HRM). On November 17, 2017, Complainant filed a formal EEO complaint alleging discriminatory harassment by the Agency based on disability2 and in reprisal for prior EEO activity (Agency No. 4F-926-0085-16) 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. 2021000318 2 1. On July 20, 2017, she was harassed by a co-worker when she overheard the co- worker saying she wanted to get rid of him, and when Complainant told his manager, he did nothing. 2. On August 25, 2017, and other dates, she felt management put pressure on her to take a position that would violate her medical restrictions. 3. On August 31, 2017, her manager made comments to her about taking away positions which made her feel intimidated. 4. Beginning in September 2017, she was not permitted to take her laptop home as her co-workers were allowed to do, she was denied access to important software applications, and the laptop assigned to her was faulty, which making her job more difficult. 5. On September 11, 2017, a co-worker spoke with her about the co-worker who harassed her and she feels the co-worker did this to show support for the harasser. 6. From September 25, 2017 to October 27, 2017, someone tampered with templates she used to provide data reports and she feels the action was done intentionally, and when she told her manager, she stated that a co-worker knew about the matter but he did nothing. 7. On October 2, 2017, she was not invited to a training meeting. 8. On October 2, 2017, she was informed that she would not receive a salary increase/performance raise. 9. On October 12, 2017, a co-worker became aware of a machine problem which affected Complainant’s reports but did not tell her about it and she feels it was done intentionally. 10. On October 17, 2017, she was not accommodated per her medical restrictions when she was removed from her detail and sent to Tour 3. 11. On October 30, 2017, she was not invited to a training meeting. 2 Complainant identified her disabilities as adjustment disorder with mixed anxiety, and depressed mood, acute stress syndrome, insomnia, vertigo and chest pain. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2021000318 3 After its investigation, 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant submitted a response in opposition to the Agency’s motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant submitted a brief on appeal. 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). 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. To prove her harassment claim, Complainant must establish that she 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 basis - in this case, her disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). In his decision, the AJ determined that “[i]n almost every instance, Complainant takes a benign workplace event and speculatively warps it into a discriminatory act.” 2021000318 4 The AJ found that Complainant was unhappy under two managers. Complainant asserted that working in HRM caused her stress and other physical symptoms. Around the end of 2016, Complainant filed for workers’ compensation and stopped coming to work toward the end of 2016. In early December 2016, Complainant requested a reasonable accommodation. The physician’s note recommended an assignment to a different supervisor and work area with comparable duties, no greater than 40 hours per week, similar pace and volume, no exposure to stressors, and comparable commute time. On January 5, 2017, the District Reasonable Accommodation Committee (DRAC), Complainant and management discussed a possible detail to In-Plant Support (IPS) as an Operations Support Specialist (“OSS”) or, alternatively, a return to HRM because the managers Complainant did not get along with had retired. The Manager In- Plant (Manager) offered Complainant the OSS detail in which she accepted. She started at IPS on January 17, 2017. Regarding Complainant’s claim that a co-worker (CW-1) made comments regarding Complainant, the AJ determined Complainant and CW-1 simply did not get along. The Manager explained when Complainant mentioned to the Manager that she overheard CW-1 on the phone telling someone that Complainant will be removed from the department, he asked CW-1 if she had a conversation on the phone concerning Complainant, she denied it. Moreover, the Manager asked Complainant if she had a witness in support of her allegation, but she could not provide one. Regarding Complainant’s claim that at the beginning of her detail, she met with her former manager and new manager (Manager In-Plant) and they set up her starting hours would be from 5:00 a.m. to 1:30 p.m. Two weeks into the detail, the Manager informed Complainant that a competitive bid OSS position with an earlier start time was going to be advertised. He told Complainant the bid position would be a good opportunity to cross-train and gain experience in the department. However, Complainant did not apply for the position. The AJ understood Complainant felt pressured by the invitation but there was no evidence that the Manager intended to pressure or single out Complainant. The record reflects that the Manager gave the same information and encouragement to another similarly situated employee. According to CW-1, she explained that the In-Plant Department attempted to assist Complainant because she had little knowledge about processing programs such as Windows, Excel and Word documents, and that she would often inadvertently corrupt files. The In-Plant Team created instructions in order to best assist her. She stated that the Acting OSS would delete the corrupted files and build new ones to assist Complainant. Further, CW-1 stated that on September 12, 2017, she was supposed to conduct training for the supervisors at 7:00 a.m. when Complainant showed up. She noted that Complainant was not scheduled for the training and “she sat there staring at me without saying a word.” CW-1 stated that there were two other trainers with her. One of the trainers asked Complainant if she was scheduled for the training and she stated that she was not scheduled. 2021000318 5 CW-1 stated that Complainant made everyone uncomfortable and the other trainer asked her what was wrong with her because she seemed confrontational and aggressive towards CW-1. Complainant had forgotten that she was to attend the training and got up and left the room. Complainant claimed that on August 31, 2017, the Manager informed her that CW-1 wanted to replace the MDO and he proceeded to say that he would rather make CW-1 the Transportation Manager. While the AJ accepted that the Manager had this conversation with Complainant, there was no evidence that the Manager intended his comments to be intimidating. In early September 2017, the Acting Manager In-Plant (Acting Manager) was filling in for the In-Plant Manager when CW-1 informed him of an incident between herself and Complainant. On September 11, 2017, the Acting Manager called Complainant to his office to get her side of the story. He stated that he wanted everyone to get along and asked Complainant if she could continue taking instructions from CW-1. After hearing Complainant’s side of the story, the Acting Manager did not take any action against her. The AJ stated that in regard to Complainant’s claim that she was not invited to participate a training for the HRM department. The Human Resources (HR) Manager explained that Complainant was not included because she was not working in HRM at the time due to her detail to IPS.3 In October 2017, Complainant asked the HR Manager if she would receive a pay for performance salary increase. The HR Manager asserted that he never told Complainant that she would not receive a salary increase/performance raise. He explained that Complainant received a 3% increase in January 2017 based on the 2016 NPA cell 6 rating and in accordance with EAS pay rules which was the same rating the entire HR Department received. Complainant asserted that on October 17, 2017, she was not accommodated per his medical restrictions when she was removed from his detail and sent to Tour 3. The Manager explained all In-Plant OSS are required to be cross-trained. He acknowledged asking Complainant to cross train on Tour 3 as it is part of her development like every other OSS have done in the past and that the Manager was not asking Complainant to do something which he himself would have done. The image which emerges from our consideration of the totality of the record is that there were conflicts and tensions with Agency management and some of her coworkers that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to her supervisor or coworker’s personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). 3 The record reflects that Complainant was also upset that she was not invited to an HRM all staff meeting scheduled for October 30, 2017. By that time, Complainant had returned to HRM, the HRM Manager forwarded the invitation to Complainant. 2021000318 6 See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that any of the individuals identified by Complainant were motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s summary judgment 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. 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 2021000318 7 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. 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. 2021000318 8 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gwendolyn G.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2021000463 Hearing Nos. 570-2019-00928X 570-2019-01527X Agency Nos. HHS-OS-0063-2018 HHS-OS-0020-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s (AJ’s) September 30, 2020 decision which effectively became the Agency’s final action2 concerning the two formal complaints that claimed unlawful 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.3 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 Pursuant to 29 C.F.R. § 1614.110(a), where, as here, the Agency does not issue a final order within the prescribed timeframe, the EEOC Administrative Judge’s decision becomes the Agency’s final action. 3 On May 1, 2020, the EEOC Administrative Judge granted Complainant’s motion to consolidate her two formal complaints. 2021000463 2 BACKGROUND During the period at issue, Complainant worked as a Process Improvement Specialist and Master Black Belt, GS-14, at the Agency’s Office of Assistant Secretary for Preparedness and Response in Charleston, South Carolina. On September 28, 2018 and March 28, 2019, respectively, Complainant filed two formal complaints claiming that the Agency discriminated against her based on race/national origin4 (African American), sex (female), disability and in reprisal for prior protected EEO activity (in 2016 and 2017) when: 1. On or around June 2018 and continuing, management failed to take part in the interactive process regarding her request for a reasonable accommodation for her disability. 2. On August 6, 2018, Complainant was denied a request for a reasonable accommodation and instructed to provide more medical documentation or be charged as Absent Without Leave (“AWOL”) by the Branch Chief, Organizational Effectiveness Branch. 3. On a continuing basis since 2015, Complainant has been harassed by the Executive Officer which has negatively impacted her career as evidenced by the following incidents: a. In the spring of 2018, the Executive encouraged the Chief of Staff not to respond to Complainant’s information and ideas about possible reassignments under the realignment; and b. In May 2018, the Executive Officer denied Complainant’s training request. 4. On or about October 21, 2018, Complainant was subjected to harassment and retaliation when her reasonable accommodation request was deliberately delayed which exacerbated her medical disability (untimely reasonable accommodation determination). 5. On or around November 2018, and continuing, she was charged with being AWOL. 6. On November 19, 2018, management denied her second request for reasonable accommodation. 4 In her affidavit during the investigation of her complaint, Complainant withdrew national origin as a basis. 2021000463 3 7. On November 19, 2018, management did not engage in the interactive process for her reasonable accommodation request. 8. On February 1, 2019, management denied her request for reconsideration of a request for reasonable accommodation. After its investigation, 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). Complainant timely requested a hearing. The Agency submitted a Motion for Summary Judgment. Complainant responded to the motion. The AJ subsequently issued a decision by summary judgment finding no discrimination. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Complainant stated that she was diagnosed with Major Depressive Disorder in 2016 and noted the condition was expected to last for six months to a year. She related, however, that the condition resurfaced in June 2018. Complainant, however, indicated that the condition did not significantly impair her overall ability to work. Prior to the events at issue, Complainant was permitted to work a 50% telework schedule where she teleworked one week from her home in South Carolina and worked the next week from the Washington, D.C. office. In or around June 15, 2018, Complainant submitted a reasonable accommodation request to change her schedule to allow her to telework 100% of the time. She requested the accommodation “due to a hostile and intimidating work environment.” Complainant’s reasonable accommodation request was submitted to the Federal Occupational Health Service (“FOH”), and on July 31, 2018, FOH provided its review to the Agency. FOH concluded that, “[w]ith respect to work [Complainant] is not able to interact with other individuals in her current assignment but does not appear to be otherwise impaired.” According to Complainant’s physician, Complainant was able to perform her duties, but she needs to be outside of her work environment. FOH explained that “her limitation is not being able to work in her current office. There is no medical documentation of a substantial limitation on her working in other environments.” Moreover, FOH recommended resolving the matter outside the reasonable accommodation process. 2021000463 4 Complainant’s first level supervisor (“S1”) (Caucasian, female) at the time asserted she was the decision-maker concerning Complainant’s reasonable accommodation request. However, she stated that she had just become Complainant’s supervisor and had never even met her. She was unable to talk to Complainant about the matter because Complainant was on an extended leave and “when an employee is on leave, a supervisor is not allowed to contact an employee.” On August 6, 2018, S1 denied Complainant’s reasonable accommodation request. S1 explained she did so because FOH determined Complainant’s medical condition did not appear to significantly impair her overall ability to work, and Complainant’s job duties precluded her from full-time telework. She asserted that Complainant’s position required her to interact with and train many individuals, some of whom were high-level employees in the Agency, which had to occur in the office in Washington. S1 said she did offer, and Complainant accepted, more time off using Family & Medical Leave Act (FMLA) leave and leave without pay. S1 acknowledged asking Complainant to provide additional medical information but clarified that she did so as it related to Complainant’s FMLA leave, not Complainant’s accommodation request. She also said she offered to provide assistance to resolve Complainant’s concerns regarding her interpersonal relationships with her co-workers through counseling, the Employee Assistance Program (“EAP”) or mediation services. Complainant was approved for 144 hours of FMLA, which she used beginning July 2018. As of August 9, 2018, Complainant had used 160 hours of FMLA, and indicated she required additional leave through September 21, 2018. S1 requested additional medical documentation to support this request with a due date of August 24, 2018. On September 13, 2018, Complainant was approved to use a total of 480 hours of FMLA in any one twelve-month period. Complainant was reminded that she had already used 416 hours of FMLA. Complainant was approved for LWOP until November 9, 2018 for absences which exceeded her 480 hours FMLA entitlement. In total, Complainant was approved for a total of 800 hours of leave, including 480 FMLA hours and 320 LWOP hours. On October 26, 2018, Complainant emailed S1 a doctor’s note which stated, “Please extend FMLA an additional 3 months.” On November 7, 2018, S1 advised Complainant that she had exhausted the maximum number of hours under FMLA for a twelve month-calendar period and that this doctor’s note was not administratively acceptable for her continued request for LWOP. S1 instructed Complainant to submit updated medical documentation by November 21, 2018. S1 stated if she did not do so, she was required to report to duty on November 26, 2018. Complainant did not submit the requested medical documentation. Beginning on November 26, 2018, S1 charged Complainant as AWOL because she did not provide medical documentation to support her leave and did not report to work. On September 21, 2018, Complainant submitted a new accommodation request, again asking for 100% telework and a reassignment. Her request was forwarded to FOH for review. 2021000463 5 Complainant also submitted medical documentation from her physician who indicated stated that Complainant had difficulty managing interpersonal interactions with co-workers, and “due to recent conflicts in the workplace, the patient feels very easily overwhelmed and anxious about going to the workplace.” After a review of Complainant’s request, FOH concluded that her limitations related only to interacting and working with her colleagues in her current office environment. FOH also recommended that Complainant be offered counseling services or EAP to assist in resolving the interpersonal conflicts. On November 19, 2018, S1 denied Complainant’s request based on the FOH medical review. Thereafter, Complainant requested reconsideration of the denial on November 27, 2018. On January 24, 2019, FOH provided their review of Complainant’s request to Agency’s Reasonable Accommodation Specialist indicating their opinion remained unchanged. Based on this opinion, on February 1, 2019, S1 denied Complainant’s request for reconsideration. The unrebutted evidence developed during the investigation of the complaint indicates that Agency officials promptly processed Complainant’s reasonable accommodation requests and, while interaction was hampered by the fact that Complainant was out on extended approved leave, they invited her to provide new information for consideration. Complainant submitted information, including doctor’s notes, relating to her requests which seem to amount to a request to remove her from an undesirable workplace. Management had the request reviewed by medical experts at FOH who opined that Complainant’s disability did not impact her performance of the essential functions of her position. Rather, it appeared that Complainant was having interpersonal conflicts with coworkers that could be resolved outside the accommodation process. Based on this advice, we agree with the AJ’s conclusion that management was reasonable in its denial of her request for 100% telework and a reassignment. See Donna S. v. Dep’t of Defense, EEOC Appeal No. 0120160652 (May 16, 2018) (a request for a reassignment to a new supervisor does not constitute a reasonable accommodation request). There is no evidence to support a finding that Complainant needed these particular accommodations in order to perform the essential functions of her position. Instead, management offered Complainant alternative accommodations, including approving many months of leave using FMLA and LWOP after her accrued leave was exhausted, as well as offering to provide assistance in resolving Complainant’s concerns regarding her interpersonal relationships with her co-workers through counseling, EAP, or mediation services. We affirm the AJ’s conclusion that the evidence of record did not support Complainant’s claim that the Agency failed to provide her with needed accommodations in violation of the Rehabilitation Act. Harassment/Hostile Work Environment To prove her harassment/hostile work environment claim, Complainant must establish that she 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, her race, sex, disability or prior EEO activity. 2021000463 6 Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). In addition to the issues already discussed in this decision, Complainant also asserted that on January 31, 2018, the Chief, Decision Analytics Branch informed the team that the Branch had a budget of $10,000 for the full team for training that year. Complainant requested three trainings, totaling over $10,000. The Chief initially informed Complainant he would approve her requested Change Management course. This training was estimated to cost $5,000 plus $1,200 in travel costs. However, on May 21, 2018, the Chief informed Complainant that her training request was denied due to high costs in relation to the total budget. Beyond her bare speculation, Complainant produced no evidence that this decision was based on discriminatory factors rather than budgetary concerns. In sum, the evidence fully supports the AJ’s determination that there was simply no evidence that discriminatory or retaliatory animus played a role in the disputed actions. Her claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, we AFFIRM the Agency’s final action, which was the AJ’s decision finding no discrimination. 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. 2021000463 7 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. 2021000463 8 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Juanita K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021000472 Agency No. 4K-220-0014-20 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 7, 2020 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 During the relevant time, Complainant was employed as a Carrier at the Agency’s Burke Branch in Burke, Virginia. On January 18, 2020, Complainant filed a formal EEO complaint alleging harassment based on race (African American) and sex (female) when: 1. On October 11 and 12, 2019, and other dates to be specified, her PS Form 3996s [requests for overtime or auxiliary assistance] were denied; 2. On October 17, 2019, she was touched inappropriately when her manager reached for her leave slip; 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. 2021000472 2 3. On or about October 18 and 23, 2019, and other dates to be specified, she was given Pre-Disciplinary Interviews (PDIs); 4. On October 21, 2019, she was issued a Letter of Warning for Failure to Maintain a Regular Schedule; 5. On October 23, 2019, she was issued a Letter of Warning for Unsatisfactory Performance, on November 1, 2019, she was issued a 7-Day Paper Suspension for Failure to Follow Instructions - Unacceptable Performance, and on December 13, 2019, she was issued a 14-Day Paper Suspension for Unsatisfactory Performance- Failure to Follow Instructions; 6. On October 14, 2019, she was instructed to get off the clock, and when she failed to do so, management called the police on her; and 7. On October 24, 2019 and ongoing, management micromanaged her, followed her on the street and threatened to fire her. After an investigation, Complainant was provided 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 7, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. Specifically, the Agency determined that Complainant did not establish that she was subjected to harassment in violation of Title VII because she did not prove that her protected bases were motivating factors in any of the incidents. The instant appeal followed. ANALYSIS AND FINDINGS To prove her harassment claim, Complainant must establish that she 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 basis - in this case, her race and/or sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). The Acting Supervisor, Customer Services, also Complainant’s supervisor (“S1”) explained that she was the management official responsible for denying Complainant’s requests for overtime or auxiliary assistance (From 3996s). At that time, she said the manager told S1 that the mail volume did not justify overtime use. 2021000472 3 Regarding Complainant’s Letter of Warning dated October 21, 2019, S1 stated during the relevant period, in less than one month, Complainant was late six times. S1 stated that on October 23, 2019, Complainant was also issued a Letter of Warning for Unsatisfactory Performance (unauthorized overtime). Regarding the November 1, 2019 and December 13, 2019 suspensions, S1 explained that Complainant would not listen to her or take direction which resulted in unacceptable work performance. S1 provided a number of examples of this occurring. The Supervisor, Customer Service (“S2”) stated that on October 21, 2019, she went out with Complainant in order to work on her performance and provide training. S2 informed Complainant on the route that she needed to be back to the office, clock out and go home. However, Complainant did not follow her instructions. S2 stated, “at one point, Complainant was in the breakroom talking on her phone. She told me that the only way she would leave the workroom was if the police were called. She did not leave me any other options, and so I called the police.” According to Complainant’s manager, he denied touching Complainant inappropriately when he reached for her leave slip. He asserted that he never had any interaction with Complainant or any other female employee without a shop steward present in order to protect himself from allegations or misunderstandings. With respect to Complainant’s allegation that management micromanaged her, followed her on the street, and threatened to fire her, the manager noted it was a standard procedure to go point to point with different carriers. He stated that a supervisor’s duty is to observe their performance, look for training opportunities and to review day to day actions of the carriers. The image which emerges from our consideration of the totality of the record is that there were conflicts and tensions with Agency management that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor’s personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that any of the individuals identified by Complainant were motivated by discriminatory or retaliatory animus. Beyond her unsupported assertions, Complainant produced no evidence of discrimination. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021000472 4 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021000472 5 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristobal F.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 2021000496 Hearing No. 560-2018-00333X Agency No. DOI-BIE-17-0580 DECISION On October 2, 2020, 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 September 3, 2020, final order concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Instructor of Accounting at the Agency’s Haskell Indian Nations University (“HINU”) in the Bureau of Indian Education (“BIE”) in Lawrence, Kansas. On November 28, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of national origin (Cherokee Nation), sex (male), and reprisal for prior protected EEO activity 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. 2021000496 2 1. on or about September 18, 2017, Complainant received an electronic official personnel file (“eOPF”) notification of a new document and discovered that the Letter of Reprimand he had previously received on January 30, 2017, had been re-uploaded; 2. on May 3, 11, and 30, 2017, Complainant was allegedly bullied and intimidated by the HINU President, his 3rd level supervisor (“HINU President”), on the appropriate chain of command policy, in an email and then in a campus-wide memorandum, following Complainant’s email to the BIE Director seeking information on the chain of command; and 3. on August 29, 2016, Complainant alleges the HINU Dean of Professional Schools (“Supervisor”) informed him he was not being promoted, even though he had received an email notification on August 25, 2016, from the HINU Dean of the College of Natural and Sciences (“Dean”) stating that she had signed the document approving his promotion from GS-9 to GS-11. The Agency dismissed claim 3 as a discrete act for untimely EEO counselor contact, but noted it could be used as background evidence in support of Complainant’s other claims. The Agency accepted claims 1 and 2 and conducted an investigation into these claims. Claim 1 The investigation shows Complainant alleged he had been discriminated against and subjected to harassment on the bases of his sex, national origin, and reprisal, when the Agency re-posted his January 2017 reprimand letter to his Electronic Official Personnel File (“eOPF”). He contends the originally posted reprimand should have been removed from his eOPF on January 25, 2018, but the newly posted form changed the date to January 30, 2018. Complainant contends this was done in retaliation for his recent inquiries to HINU Human Resources about a step increase. He also contended it was because he took management officials to mediation and challenged their activity. The record reflects Complainant received a Letter of Reprimand dated January 25, 2017, which he signed receipt of on January 30, 2017 (“Reprimand”). On September 17, 2017, Complainant received a notification that there was a new document uploaded to his eOPF. However, when he viewed this “new” document, he discovered it was the Reprimand which was now listed in his eOPF twice. Complainant contacted an Agency Human Resources Specialist in Albuquerque, New Mexico, about this and he was told someone at HINU had added the “new” Reprimand to his eOPF. The HINU Human Resources Specialist (“HINU HRS”) had originally uploaded the Reprimand to Complainant’s eOPF using the wrong code. Later, a Security Assistant for Employee and Labor Relations for BIE also uploaded the Reprimand into Complainant’s eOPF. When Complainant notice the Reprimand was in his eOPF twice, he contacted Supervisor and HINU HRS. HINU HRS checked Complainant’s eOPF and also discovered the Reprimand had been uploaded twice. 2021000496 3 Later, Human Resources removed one of the Reprimands from Complainant’s eOPF. Complainant acknowledged on September 30, 2017 that one of the Reprimands had been removed from his eOPF. On October 2, 2017 HINU HRS requested that the removed Reprimand be purged. Supervisor testified she believed the Reprimand being uploaded to Complainant’s eOPF a second time was an administrative error that was corrected, and she did not believe it was meant to harass or retaliate against Complainant. She further testified that neither Complainant’s national origin nor sex were factors in the way she responded to or treated Complainant relative to what happened. HINU President also testified that neither Complainant’s national origin nor sex were factors in the way she responded to or treated Complainant relative to what happened. HINU HRS also testified that that the loading of the Reprimand twice was an administrative error. She further testified that neither Complainant’s national origin nor sex were factors in the way she responded to or treated Complainant relative to what happened. Claim 2 The investigation showed that Complainant alleged he had also been discriminated against and subjected to harassment on the bases of his sex, national origin, and reprisal, when on May, 3, 11, and 30, 2017, he was bullied and intimidated by HINU President on the appropriate chain of command policy, in an email and then in a campus-wide memorandum, following Complainant’s email to the BIE Director seeking information on the chain of command. Complainant contended that he sought to receive a copy of the personnel document purporting to promote him, but did not receive responses. Therefore, he continued to escalate his request up the chain of command. On May 1, 2017, Complainant emailed the BIE Director asking for the chain of command above and below the BIE Director. The BIE Director responded by stating that HINU President would provide that information. On May 3, 2017, HINU President emailed Complainant explaining the supervisory chain of command at HINU and wrote that it was inappropriate of Complainant to bypass the supervisory line of authority as he had previously done. HINU President had previously advised Complainant of this via email on January 25, 2017 and that conduct had resulted in the above-discussed Reprimand. HINU President testified that it was inappropriate for Complainant to include her in emails regarding her personnel issues because she could ultimately become the deciding official on unresolved matters. On May 11, 2017, HINU President issued a campus-wide memorandum on the supervisory line of authority at HINU and encouraged HINU employees to pursue personnel issues though proper established procedures. Complainant was not mentioned by name or any other identifying factor in the memorandum. HINU President testified that her memorandum was not directed at Complainant, but it was issued as a reminder to all employees. She noted other employees were discussing issues on social media and she wanted everyone to understand their responsibilities to follow the supervisor line of authority to resolve issues. She testified that Complainant’s national origin and sex were not factors in her issuance of the email or memorandum and that neither her email nor the memorandum were meant to harass Complainant. 2021000496 4 The record also shows that similar campus-wide memorandums about the necessity of following the “chain of command” were issued in 2012 and 2013 by former HINU Presidents, and that HINU President issued a campus-wide memorandum on harassment in April 2017. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order adopting the AJ’s decision.2 Complainant filed the instant appeal, but he did not file a statement or brief in support of his appeal. In response to the appeal, the Agency argues Complainant failed to establish a prima facie case of national origin discrimination, sex discrimination, or retaliation because he was not aggrieved or harmed by the Reprimand being posted twice and then corrected, HINU President’s response to Complainant’s email inquiry, or a campus-wide memorandum. The Agency contends that the AJ correctly determined Complainant was not an aggrieved employee because having his reprimand uploaded twice and then remedied did not harm him as to a term, condition, or privilege of employment, and neither did HINU President’s May 3, 2017 email to Complainant or her campus-wide memorandum. The Agency also notes Complainant cannot identify any similarly situated employees who were treated differently. The Agency contends that Complainant’s own statements, viewed in the light most favorable to him, do not provide any evidence of discrimination or harassment; the Agency has identified legitimate, non- discriminatory reasons for its actions; and Complainant has not provided any evidence to show these reasons were pretextual. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 2 The AJ found Complainant failed to state a claim because he did not show he was aggrieved. However, rather than dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) and 29 C.F.R. § 1614.109(b), the AJ entered summary judgment on the complaint in favor of the Agency. 2021000496 5 The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 must further establish that such facts are material under applicable law. Here, Complainant has failed file a brief or statement in support of his appeal, and before the AJ did not point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Partial Dismissal/Timeliness In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). Here, the record reflects that in Claim 3, Complainant alleged discrimination and harassment based on the rescission of his promotion on August 29, 2016. However, he did not contact an EEO counselor until months later, on September 18, 2017. Complainant indicated in his summary judgment argument that he filed a complaint with the Agency’s Office of Inspector General and he was waiting for the issuance of a report. We agree with the AJ that Complainant’s utilization of the Agency’s Inspector General process does not toll the time limit for contacting an EEO counselor. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000); Wes L. v. Dep’t of Justice, EEOC Appeal No. 0120170847 (Mar. 23, 2017) (complainant’s utilization of the Agency’s Inspector General process does not toll the time limit 2021000496 6 for contacting an EEO counselor); Christopher M. v. Dep’t of the Navy, EEOC Request No. 2019002772 (Aug. 15, 2019) (complainant’s argument that he was unaware he had a viable EEO complaint until he received findings from his Inspector General complaint does not toll the time limit for contacting an EEO counselor). Complainant has not provided a sufficient justification for his failure to timely challenge his promotion issue. Therefore, we agree with the AJ that Claim 3 was properly dismissed as a discrete act for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2), but that it may be considered as background evidence in support of his timely filed harassment claim. Failure to State a Claim The regulation set forth under 29 C.F.R. § 1614.107(a)(1) provides that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). For claims of reprisal, the Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage.” Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter complainant or others from engaging in protected activity. See Maclin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007), citing Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000) and EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15. Neither Claim 1 nor Claim 2 successfully alleged a present harm or loss to a term, condition, or privilege of employment for which there is a remedy, and neither of these claims describe Agency conduct that is reasonably likely to deter Complainant or others from engaging in protected activity. In Claim 1, Complainant alleges his Reprimand was uploaded to his eOPF twice and remained there five days longer than it should have. However, he has not shown how this caused any harm or would serve as a deterrent to him or others. There is no evidence that anyone other than Complainant or those involved in the administrative error and correcting it viewed his eOPF during the relevant time frame. Additionally, Complainant acknowledged that the duplicate reprimand was removed after he brought it to the attention of Supervisor. In Claim 2, Complainant alleges he was bullied by HINU President in an email and a campus-wide memorandum. 2021000496 7 However, the undisputed evidence shows that the email was a response to Complainant’s inquiry about the supervisory chain of command (and did in fact detail the chain of command), and the memorandum was not directed at Complainant and in no way mentioned or alluded to Complainant. Instead it was sent as a reminder to all employees and it was partially based on other employees’ social media activity. Therefore, with respect to a claim of disparate treatment, Claims 1 and 2 fail to state a claim of discrimination. Harassment In addition to raising claims of disparate treatment, Complainant also alleged a pattern of ongoing discriminatory harassment. In determining whether a harassment complaint states a claim, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission has held that where a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Id. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). However, we have found that allegations of a few isolated incidents of alleged harassment usually are usually not sufficient to state a viable harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Dep't of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). The alleged incidents are not sufficiently severe or pervasive to state a claim of discriminatory harassment. An administrative error that was later corrected, a response to Complainant’s request for information about the chain of command, and a campus-wide memorandum, even when viewed in connection with Complainant’s allegations of non-promotion, do not rise to the level of conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Moreover, there is simply no evidence to show that these events were motivated in anyway by Complainant’s national origin, sex or unlawful retaliatory animus. Therefore, we find Complainant’s harassment claim fails. 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. 2021000496 8 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). 2021000496 9 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrence H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000610 Agency No. 200P-0644-2013102570 DECISION On September 25, 2020, via counsel, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an August 20, 2020 final Agency determination (FAD) that it complied with its November 8, 2018 final order and the order in EEOC Appeal No. 2019005811 (June 30, 2020). 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.405 and .504(b). BACKGROUND Complainant was employed by the Agency as a Physician (General Surgeon), VM-0602-PHYS, at the Veterans Affairs Medical Center, Surgical Service, in Phoenix, Arizona. On July 5, 2013, Complainant filed an equal employment opportunity (EEO) complaint, as amended, alleging that he was discriminated against in violation of Title VII2 when, in part, the Agency put him on administrative leave, suspended his clinical privileges, and terminated him during his probationary period. 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 2021000610 2 Following an EEO investigation and hearing before an EEOC Administrative Judge (AJ), the AJ decided that Complainant was discriminated against as alleged above and on other incidents. In relevant part the AJ ordered the Agency, as summarized below, to pay Complainant: 1. Back pay from the date of his termination with interest, including out-of-pocket costs he incurred to replace benefits, such as medical coverage.3 2. Front pay under specified circumstances. 3. All appropriate tax-deferred contributions to his Thrift Savings Program (TSP) account during the back pay period, and earnings on them. 4. A tax consequences award in an amount to be determined after the Agency has calculated and paid the Complainant's back and front pay awards and following the Complainant's submission to the Agency of the amount of the adverse consequences of the lump sum payment(s) in the tax year of those awards. By final order on November 8, 2018, the Agency adopted the AJ’s decision, including the remedies ordered concerning back and front pay. Complainant filed an appeal in August 2019, docketed as EEOC Appeal No. 2019005811, contending, in relevant part, that the Agency had not paid him any back and front pay. On January 30, 2020, while the appeal was pending, the Agency issued checks to Complainant for $882,447.59 in back pay, $2,466,118.66 in front pay, and $252,131.55 in interest. Complainant then retained a new law firm which argued that while he had now received checks for back and front pay, the Agency did not give him information on how these awards were calculated. The Commission agreed and found it could not determine if the Agency fully complied with its November 8, 2018 final order on back and front pay. Hence, in EEOC Appeal No. 2019005811 (June 30, 2020), the Commission ordered the Agency to: (1) supplement the record with clear, plain language explanations of its calculations on back and front pay, and (2) issue a new final decision on whether it was in full compliance with its November 8, 2018 final order. The Agency then supplemented the record with calculations and issued a final decision concluding it fully complied its November 8, 2018 final order concerning back and front pay. The instant appeal followed. 3 The AJ explained that the Agency’s calculation of back pay “should mirror increases that he would have had if he had remained employed, presumably by comparison to those physicians most similarly-situated to him.” 2021000610 3 ANALYSIS The parties disagree on whether the Agency fully complied with the back and front pay awards in its own November 8, 2018 final order, as well as the Commission’s order in EEOC Appeal No. 2019005811 to give clear and plain calculations of these awards. It is undisputed that on January 30, 2020, the Agency sent checks to Complainant for $882,447.59 in back pay, $2,466,118.66 in front pay, and $252,131.55 in interest, and represented this was full payment for the back and front pay awards in its November 8, 2018 final order. On August 20, 2020, the Agency submitted a report to the EEOC’s Office of Federal Operations detailing its compliance with the order in EEOC Appeal No. 2019005811 to give calculations supporting its back and front pay awards. The Agency’s compliance report concluded that: a. Back pay [was] calculated by DFAS [Defense Finance and Accounting Service] based on the SF50s [notifications of personnel actions]… which reflect the pay [Complainant] was to receive… as well as the pay chart for the associated year to calculate back pay from November 2, 2013 through November 10, 2018. The calculations include [Complainant’s] regular earning, market pay, and… the leave that would have been accrued. The deductions that were subtracted from the Gross pay were… FERS [Federal Employees Retirement System], Medicare, State and Federal Taxes, and TSP (Thrift Savings Plan). b. Front pay [was] calculated by DFAS based on the SF50s and the pay chart for each year moving forward until [Complainant’s] retirement date. I am attaching the calculations which reflect the front pay… calculated from September 9, 2018 through November 13, 2031. The only deductions that were deducted from the pay calculations was the FERS… Federal and state tax, Medicare, and Social Security. Following this summary, the Agency’s report included pages of actual calculations on charts that were identified and labeled in detail. Also, on August 20, 2020, the Agency issued a new final decision finding it fully complied with the orders on back and front pay, including giving a clear, plain language explanation of how these awards were calculated. In his October 26, 2020 appeal brief, Complainant argues the Agency gave inadequate documentation of its calculations of back and front pay. In sum, he argues that while the Agency’s compliance report indicates that back and front pay were calculated based on SF50s and pay charts, it did not include full copies of these documents. 2021000610 4 Complainant argues that the calculation of back pay should include salary increases he would have gotten if he remained employed, "presumably by comparison to those physicians most similarly-situated to him," but the documentation in the compliance report does not identify how the increases were calculated or whether or how the Agency considered physicians similarly situated to him in making them. Complainant contends there is no documentation on the bases of the Agency’s assumptions and calculations for front pay. Finally, he argues the Agency does not identify the basis of calculations for FERS or TSP contributions. We agree with Complainant’s arguments. The compliance report did not include physician pay tables from 2013 - 2018, and the ones included contained steps, not grades. It also included no SF50s reflecting grade levels and steps - or their equivalent. The calculations have no information on whether Complainant’s back pay tracked the pay of similarly situated physicians,4 or the basis of assumptions in creating physician pay tables used in calculating front pay. In the absence of SF50s covering the back and front pay periods, the record does not show what grades and steps - or their equivalent the Agency assumed Complainant would, or will be at, any given time, nor does the record have the Agency’s explanations for the grade and step assumptions it made for the back and front pay periods. We agree with Complainant that the Agency did not give the basis of its calculations for FERS or TSP contributions. As such, we cannot determine whether or not the Agency is, in fact, in full compliance with its own November 8, 2018 final order and our decision in EEOC Appeal No. 2019005811. Complainant also argues that he should be allowed to submit evidence to the Agency on the tax consequences arising from getting lump sum payments in one tax year. We agree and find this applies to the front and back pay with interest paid to Complainant in 2020. Complainant may submit evidence of tax consequences to the Agency. While the Agency’s November 8, 2018 final order did not precisely identify when this evidence must be submitted, it is implicit it must be within a reasonable amount of time. A reasonable amount of time is within 180 days after the date of this decision. If Complainant receives another lump sum payment for back pay, front pay, and/or interest, he may separately submit evidence to the Agency of the tax consequences caused by the additional payment. CONCLUSION The Agency’s August 20, 2020 final decision is VACATED, and the matter REMANDED for further action as detailed in the following Order. 4 Depending on the circumstances, an example of a similarly situated physician could be Complainant’s replacement, if any. 2021000610 5 ORDER Within 120 days from the date of this decision, the Agency shall: 1. Supplement the record with further documentation, per guidance in this decision, supporting its calculations of Complainant’s back and front pay, including all benefits. 2. Issue a FAD, with appeal rights to the Commission, on whether it has complied with its November 8, 2018 final order. Prior to issuing the FAD, the Agency shall give Complainant the additional documentation, allow him to comment on whether it is sufficient, and consider the comments. Within 180 days from the date of this decision: 3. Complainant has the opportunity to submit to the Agency a request and evidence of his tax consequences caused by receiving lump sum payments for back and front pay with interest in 2020, rather than earning and receiving his wages in the normal course over time had he remained employed by the Agency. Within 90 days of receiving Complainant’s request, the Agency shall complete processing it and pay the tax consequences. If there is a dispute about the exact amount of tax consequences, the Agency shall issue a check to the Complainant for the undisputed amount within 60 days of the date the Agency determines the amount it believes to be due. The Agency is directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 2021000610 6 Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 2021000610 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Azucena A.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021001212 Hearing No. 430-2018-00340X Agency No. DON-16-00027-03749 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s (AJ’s) decision, dismissing a formal complaint of unlawful 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 During the period at issue, Complainant worked as the Project Manager, Data Housing and Reporting Tool (DHART) for the Marine Corps Civilian Law Enforcement Program, through a contract Homeland Security Solutions, Inc. (HSSI) entered with the Agency. While the position was located at Camp Johnson/Camp Lejeune in North Carolina, Complainant teleworked from home and “traveled to client sites on as-needed basis.” In November 2015, Complainant, in support of a co-worker, raised claims of sexual harassment by an Agency official (A1). A1 was the Program Manager for the Marine Corps Civilian Law Enforcement Program. The Agency conducted an investigation but found no harassment was established. Shortly thereafter, according to Complainant, A1 directed that her position be moved to California. 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. 2021001212 2 Complainant asserts that she was given 30 days to relocate to California at her own expense. Based on the foregoing, Complainant alleged that she was forced to resign and the Agency’s actions constituted a discriminatory and retaliatory constructive discharge. On January 4, 2017, Complainant filed a formal EEO complaint claiming discrimination based on sex (female) and unlawful retaliation for engaging in protected activity (allegations of sexual harassment by an Agency official). On February 2, 2017, the Agency issued a final decision dismissing the complaint. The Agency determined that Complainant’s complaint was comprised of the following claims: 1. On September 9, 2016, [Complainant] was subjected to constructive discharge and resigned from her position as the DHART Project Manager for the MCLEP as a contract for HSSI. 2. On or about December 16, 2016, [Complainant] received two hang up calls on her personal cell phone from [A1]. The Agency dismissed the formal complaint for failure to state a claim reasoning that Complainant was not an Agency employee and therefore lacked standing to file a complaint. Complainant appealed the dismissal. However, in EEOC Appeal No. 0120171386 (Aug. 9, 2017), we reversed the Agency’s dismissal and remanded the matter to the Agency for further processing. Specifically, the appellate decision reasoned, “[the Agency] has failed to provide any supporting evidence. The record, for example, does not contain a copy of the Agency’s contract with HSSI. The Agency has not proffered any affidavits…the record does not support the Agency’s claim that it did not exert sufficient control over her to be considered a joint employer for the purposes of the EEO process.” Upon completion of the investigation following the remand, Complainant requested a hearing before an EEOC AJ. On August 17, 2018, the Agency filed a Motion to Dismiss, arguing that the report of investigation now properly addressed the issue of whether Complainant was an employee of the Agency for EEO purposes. The Agency noted that due to contract changes HSSI made personnel changes and shifted responsibility due to limited funding. The Agency asserted that Complainant second-level HSSI supervisor (S2) made the decision to eliminate her position and move the duties associated with it to other positions and determined that these individuals would work in California. On September 4, 2020, the AJ issued a decision granting the Agency’s motion and dismissing the complaint, reasoning that Complainant satisfied nearly none of the requirements that would support a finding that the Agency was her joint employer. The AJ found that HSSI directed Complainant’s work and the means and the manner in which she performed her duties. The AJ further found that the “Agency could not and did not discharge Complainant.” 2021001212 3 The record does not reflect that the Agency issued a final action subsequent to the AJ’s dismissal and it became the final decision by operation of 29 C.F.R. § 1614.109(i). Complainant appealed the AJ’s decision. On appeal, Complainant, through her attorney, asserts that she has established that the Agency was her joint employer and, as such, she has standing to pursue her EEO complaint under 29 C.F.R. Part 1614. Complainant reiterates that it was the Agency (through A1) who directed that her position be moved to California. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.103(a) provides that complaints of discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c) provides that within the covered department, agencies, and units, Part 1614 applies to all employees and applicants for employment. In Serita B. v, Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016), the Commission reaffirmed its longstanding position on “joint employers” and noted that it is found in numerous sources. See, e.g., EEOC Compliance Manual Section 2, “Threshold Issues,” Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual); EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) (Enforcement Guidance), “Coverage Issues,” Question 2; Ma v. Dep’t of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision. Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See, e.g., Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 2016); Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are, however, just two of the factors relevant to joint employment under the Commission's long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination. The term “joint employer” refers to two or more employers that each exercise sufficient control of an individual to qualify as the worker's employer. Compliance Manual, Section 2- III(B)(1)(a)(iii)(b). To determine whether the Agency has the right to exercise sufficient control, EEOC considers factors derived from common law principles of agency. See Enforcement Guidance, “Coverage Issues,” at Question 2. EEOC considers, inter alia, the Agency's right to control when, where, and how the worker performs the job; the right to assign additional projects to the worker; whether the work is performed on Agency premises; whether the Agency provides the tools, material, and equipment to perform the job; the duration of the relationship between the Agency and the worker; whether the Agency controls the worker's schedule; and whether the Agency can discharge the worker. EEOC Compliance Manual, Section 2-III(A)(1) (citing 2021001212 4 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); EEOC v. Skanska USA Bldg., Inc., 550 F.App'x 253, 256 (6th Cir. 2013) (“Entities are joint employers if they ‘share or co-determine those matters governing essential terms and conditions of employment”’) (quoting Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985); see also Ma, EEOC Appeal Nos. 01962389 & 01962390. The language of the contract between the agency and the staffing firm is not dispositive as to whether a joint-employment situation exists. In determining a worker's status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (while contract between staffing firm and agency provided that contract personnel were employees of staffing firm under its administrative supervision and control, agency actually retained supervisory authority over the contract workers). On the factor of the right to control when, where, and how the worker performs the job and to assign additional projects, complete agency control is not required. Rather, the control may be partial or joint and still point to joint employment. Shorter v. Dep't of Homeland Sec., EEOC Appeal No. 0120131148 (June 11, 2013) (where both staffing firm and agency made assignments, this pointed to joint employment); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120143162 (May 20, 2015), request for reconsideration denied, EEOC Request No. 0520150430 (Mar. 11, 2016) (where staffing firm wrote and issued complainant's appraisal with input from agency, this pointed toward joint employment). Likewise, where both the agency and staffing firm provided tools, material, and equipment to perform the job, this pointed to joint employment. Elkin v. Dep't of the Army, EEOC Appeal No. 0120122211(Nov. 8, 2012). Significant to the instant case, where a staffing firm terminates a worker after an agency communicates it no longer wants the worker's services, this supports a finding that the agency has joint or de facto power to discharge the worker. See, e.g., Complainants v. Dep't of Justice, EEOC Appeal Nos. 0120141963 & 0120141762 (Jan. 28, 2015); see also Skanska USA Bldg., Inc., 550 Fed. App'x at 254, 256 (where defendant removed staffing firm's workers from job site without challenge from staffing firm, and after such removals staffing firm generally fired worker, this pointed to joint employment); Butler v. Drive Auto. Indus. of America, Inc., 793 F.3d 404, 414-15 (4th Cir. 2015). In the instant matter, Complainant is alleging that the Agency, through the actions of A1, subjected her to constructive discharge when Complainant was informed that her position was being moved to California and that she would need to relocate within 30 days, at her own expense. Thus, the circumstances surrounding the relocation of her position to California is significant to the analysis of whether the Agency is a joint employer of Complainant for purpose of establishing standing to use the EEO complaint process. The record now contains a lengthy report of investigation. The report of investigation contains some evidence indicating that the Agency was not responsible for the relocation of Complainant’s position. 2021001212 5 In a declaration under penalty of perjury from A1, he asserts that he was not responsible for the relocation to California. Report of Investigation (ROI) at 2576. He asserts that due to changes in the contract, “[HSSI] recommended and executed the reduction of several positions and combined several requirements under a single contract support position. One of these efficiencies involved DHART…[the Program Manager for HSSI]2 thought that “it would be [efficient] to make a position at the academy [in California] dual purpose by having the data entry of DHART be combined with an instructor or academy admin support position.” ROI at 2581. The record, however, also contains evidence indicating that Agency had a role in Complainant’s position being relocated to California. Complainant, in a declaration under penalty of perjury, asserted that in August 2016 her HSSI first and second-level supervisors (S1 and S2) contacted her by phone and told her that A1 informed them that her DHART position was being moved to California. ROI at 2545. In a statement dated September 2, 2016, Complainant stated that during this phone call, she was told that this decision was being directed by A1. ROI at 74. Complainant also asserted that various attempts were made, but no one could convince A1 to change his mind. The record also contains a declaration under penalty of perjury from the President/CEO of HSSI. Therein, the President of the contracting firm said A1 made the decision to transfer Complainant’s position to California. ROI at 2550. The President of HSSI stated that he was told this by Complainant’s second-level supervisor (S2). He said he directed S2 to ask A1 to reconsider. Id. S2, in a declaration under penalty of perjury, asserts that there were contract changes which resulted in changes to DHART support and the location. ROI at 2556. However, the EEO Investigator did not expressly ask S2 what A1’s role was (if any) in the change of location of Complainant’s position. In addition, the EEO Investigator did not ask S2 if he called Complainant in August 2016, and told her the decision for the relocation of her position came from A1. Furthermore, the EEO Investigator did not expressly ask S2 if he told the President, HSSI that A1 was responsible for the location change of Complainant’s position. In her statement dated September 2, 2016, Complainant further asserted that a named government employee (G1) confirmed the relocation decision was influenced by A1 and that this was “blatant retaliation.” ROI at 75. In her declaration, Complainant asserted that G1, among others, confirmed that A1 was behind the decision regarding the relocation of her position. ROI at 2545. The record reflects that the EEO investigator attempted to obtain a declaration from G1 but G1 did not respond. ROI at 2619. Complainant asserts that G1 was a key witness and as a government employee should have been compelled by the Agency to provide testimony. We agree. 2 The Program Manager for HSSI was Complainant’s second-level supervisor (S2). 2021001212 6 Based on the foregoing, we find that the AJ improperly dismissed Complainant’s complaint on the grounds that the Agency could not be considered Complainant’s joint employer for the purpose of continued processing of her EEO complaint at issue. To the contrary, we find there is sufficient evidence to suggest that A1 played a role in the decision to move Complainant’s position, the basis of her discriminatory/retaliatory constructive discharge complaint. This evidence provides Complainant with adequate standing to proceed on her complaint. Accordingly, we REVERSE the AJ’s decision dismissing Complainant’s complaint and we REMAND this matter for continued processing and a decision on the merits of Complainant’s claim.3 ORDER Within 15 calendar days of the date this decision is issued, the Agency shall submit a renewed request for a hearing on Complainant’s behalf, a copy of this appellate decision, and the complaint file to the Hearings Unit of the EEOC's Charlotte District Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. 3 While we find the evidence is sufficient to conclude A1 had a sufficient role in the decision to relocate Complainant’s position to establish standing for proceeding with her complaint, we make no determination on the extent of his role or the motivation for his involvement. Those determinations are left to the AJ on remand. 2021001212 7 A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021001212 8 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Richelle N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001248 Hearing No. 480-2020-00316X Agency No. 200P-0600-2019103024 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 13, 2020 final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the relevant time, Complainant worked as a Surgical Case Manager in the Surgical Healthcare Group at the Agency’s Veterans Affairs Long Beach Healthcare System in Long Beach, California. On July 8, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (48), and reprisal for prior protected EEO activity when: 1. On April 10, 2019, Complainant was charged with being 30 minutes absent without leave (AWOL); 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. 2021001248 2 2. On April 11, 2019, she was charged with being 15 minutes AWOL; 3. On May 23, 2019, she was issued a written counseling; 4. On September 20, 2019, Complainant’s supervisor, the Nurse Manager (S1) assigned Complainant additional duties and responsibilities to her workload; 5. On December 10, 2019, S1 assigned her additional duties to her workload; and 6. On December 17, 2019, S1 instructed Complainant not to call her personal cell phone when calling off of work and to delete her personal cell phone number. After its investigation, 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). Complainant timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. 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 of no discrimination. 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). 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. In his decision, the AJ found in favor of the Agency on all 6 claims. Regarding Claims 1 and 2, the AJ found that Complainant’s first-line supervisor (S1) was concerned about Complainant’s behavior, after receiving a call from VA police. 2021001248 3 On the morning of April 10, 2019, Complainant had been pulled over for speeding by the VA police and, after a disagreement with the officer, Complainant was issued a citation for speeding. S1 believed Complainant’s conduct was contrary to professional standards and conduct under VA policy, and discussed the matter with her own second-level supervisor (S3), the Executive Nursing Chief. S1 and S3, viewing Complainant’s absences in the context of her recent conduct, that the leave was unapproved, she was not unexpectedly sick, and she failed to inform her supervisor of the late arrival, decided to charge Complainant with AWOL for April 10 and 11, 2019. The AJ reiterated that Complainant admitted that she was absent without leave, she did not follow the requirements for requesting leave, and she did not identify any comparators. The AJ found that there was no evidence in the record to create an inference of discrimination for Claim 3. Complainant stated in her formal complaint that she received the written counseling due to her interaction with the officer on April 10, 2019, and the AJ found that Complainant did not provide evidence, beyond allegations, that she was given written counseling for any other reason than her conduct during the April 10, 2019 traffic stop. Regarding Claims 4 and 5, the Agency asserted that Complainant was assigned those duties because she had the smallest caseload and it was necessary to shar work with all employees, to handle staff shortages. The AJ properly determined, and the record so supports, that the Agency actions were motivated for the reason discussed above and were not prompted by discriminatory animus. Finally, the AJ found no discrimination regarding Claim 6, the AJ found that an Agency official instructed Complainant not to call the official on her personal cell phone, and to delete the official’s cell phone number after Complainant had called off work to the official on the personal cell phone at 4:00 a.m., awakening the official. Given the circumstances of this claim, the AJ found the Agency action reasonable and not motivated by discriminatory animus. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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 AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no discrimination. 2021001248 4 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). 2021001248 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Justine R.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021001287 Hearing No. 430-2019-00423X Agency No. ARBRAGG18APR01842 DECISION 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 October 14, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Pharmacist, 0660, GS 11, at the Agency’s medical facility in Fort Bragg, North Carolina. On July 24, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of race (Hispanic), sex (female), age (DOB 1962), and in reprisal for prior protected EEO activity 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. 2021001287 2 a. On September 28, 2017, Complainant’s first line supervisor (S1) walked over to her desk, stood and looked down at Complainant, telling her, “You need to make sure you logged off the computer, because anything less than that locks the computer.” S1 was very loud and condescending; b. On November 14, 2017, S1 entered the pharmacy yelling at Complainant in front of her peers and technicians, saying “not to fill any medications in Post Anesthesia Care Unit (PACU) unless a nurse specifically requests them;” c. On November 20, 2017, S1 did not speak with Complainant after entering the PACU pharmacy, while standing behind Complainant approximately 3.5 feet away; d. On December 28, 2017, Coworker 1 (CW1) stared at Complainant, amid other junior and senior staff, and stated very loudly, "What don't you understand about the protocol for IV Ampicillin orders for NICU patients?;” e. On December 28, 2017, S1 allowed CW1 to bully Complainant without intervening or providing advice concerning the proper protocol for IV Ampicillin orders; f. On December 28, 2017, CW1 looked at Complainant in a condescending manner, amid other junior and senior staff, and stated very loudly, “[Complainant] didn’t understand about the protocol for IV Ampicillin orders for NICU patients.” Complainant believes CW1 was trying to embarrass her in front of the pharmacist staff because of Complainant’s race; g. On January 5, 2018, S1 gave Complainant contradictory guidance on filling prescriptions in the PACU; h. On January 24, 2018, S1 gave Complainant conflicting or contradictory guidance by instructing her to prepare medication differently from in-house policy regarding IV Ampicillin and NICU patients; i. On April 3, 2018, Coworker 2 (CW2) became verbally aggressive and falsely accused Complainant of blaming the night shift techs and pharmacist of throwing away labels and skimping on their work and cursed at Complainant; j. On July 18, 2018, Complainant found a note lying by the pharmacist's bay which read, "Does anyone know who [Complainant] called out during her meeting?”; k. On August 9, 2018, CW1 and Coworker 3 (CW3) publicly shamed Complainant; 2021001287 3 l. On August 11, 2018, CW1 refused to double check the three TPN orders that Complainant had processed after they informed her that technicians were waiting for the final check to proceed with the preparation of the admixtures; m. On August 28, 2018, CW1 took work off Complainant’s desk and stated, "No one knew who was sitting at that desk and no one knew if someone was working on the folders;” n. On September 24, 2018, S2 informed Complainant that others in the department had expressed concerns that Complainant might not be capable of working on the weekends; o. On September 27, 2018, S1 made an inappropriate comment concerning Complainant’s age during a journal club review, stating, “It might have happened in the 1940’s;” and p. On October 17, 2018, CW3 yelled at Complainant with a very harsh tone. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 22, 2019, motion for a decision without a hearing and issued a decision without a hearing on October 2, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. ANALYSIS AND FINDINGS 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). 2021001287 4 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Furthermore, Complainant has failed to show by a preponderance of the evidence that any of the Agency’s actions were in retaliation for EEO activity or related to her race, sex, or age. Complainant summarily asserts that the Agency treated her differently because her coworkers and supervisors were younger than her and of a different race and/or sex from her. Complainant has not presented any evidence other than her own statements to show that the Agency was motivated by discriminatory animus. Complainant also has not identified any similarly situated employees that were treated more favorably. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). The Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. 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 the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). In addition, the Commission finds that none of the allegations were sufficiently severe or pervasive to constitute a hostile work environment under the law. The Commission has long held that Title VII is not a civility code. Rather, the statute prohibits “only behavior so objectively offensive” as to alter conditions of employment. See Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 23. In this case, the behavior did not reach that level CONCLUSION Accordingly, we AFFIRM the Agency’s final order finding no discrimination. 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 2021001287 5 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. 2021001287 6 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharolyn S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021001374 Hearing No. 550-2018-00562X Agency No. BOP-2018-0385 DECISION 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 November 20, 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. At the time of events giving rise to this complaint, Complainant worked as a Corrections Officer at the Agency’s Federal Correctional Institution in Dublin, California. On April 27, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the basis of race (African American) from August 17, 2017, to May 4, 2018, when: 1. a coworker (CW) shared information obtained from media with other staff members in an effort to defame Complainant’s character,2 and after reporting the initial incident, CW called and laughed at the Complainant; and 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. 2021001374 2 2. despite reporting the harassment on two separate occasions, management failed to address Complainant’s concerns. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant did not respond to the Agency’s motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that the Agency’s statement of undisputed facts was supported by the record, and he adopted and incorporated the Agency’s recitation of material facts, summary of relevant testimony, and statements of law. The AJ then found that no prima facie analysis was necessary because the Agency provided unrebutted evidence that, in each instance of Complainant’s complaints, CW was spoken to and asked to refrain from her alleged actions. In addition, the AJ determined that CW’s actions, while inappropriate and certainly distressing to Complainant, were neither sufficiently severe nor pervasive to rise to the level of establishing a hostile work environment. The AJ concluded that Complainant failed to establish that the Agency subjected her to discrimination or harassment based on race. 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. 2 CW shared a news article reporting Complainant’s prior arrest for submitting false documents for a workers’ compensation claim. Report of Investigation (ROI) at 168. 2021001374 3 On appeal, Complainant argues that there is a need to cross-examine witnesses. Complainant asserts that she will be able to show that non-African American employees were granted threat assessments sooner than 10 months and prove disparate treatment based on race.3 However, Complainant did not provide any examples of conflicting evidence to establish a dispute of material fact, and she did not show a need to cross-examine witnesses. Mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for recon. den’d, EEOC Request No. 05A10914 (Oct. 1, 2001). In addition, a review of the record does not reveal any genuine disputes of material facts. As such, we find that the AJ correctly determined that the complaint was appropriate for a decision without a hearing. Complainant also argues that those outside of her protected class were granted threat assessments sooner than 10 months. However, Complainant did not identify any similarly situated comparator who was treated more favorably. Accordingly, we find that Complainant did not establish a prima facie case of race discrimination when the Agency allegedly failed to address her complaints of harassment. Complainant disagrees with the AJ’s determination that she was not subjected to severe or pervasive conduct based on three incidents when CW “trashed” her office with food trays; held up an article with Complainant’s picture describing alleged illegal activity for employees to see as they entered the workplace; and called Complainant to laugh at her and encouraged Complainant’s partner to look into Complainant’s alleged illegal activity. Even crediting Complainant’s version of events, there is no evidence to connect CW’s actions to Complainant’s race. As such, we find that the AJ correctly determined that Complainant did not establish that the Agency subjected her to harassment based on her race. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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. 3 The Agency conducted a threat assessment on May 18, 2018. The Agency concluded that the matter did not rise to the level of workplace violence but recommended a cease and desist letter be issued to CW instructing her to refrain from engaging in unprofessional conduct or interactions with Complainant. ROI at 179-83. 2021001374 4 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). 2021001374 5 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bobbye C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001403 Hearing No. 430-2020-00521X Agency No. 200I-0544-2020100392 DECISION On December 1, 2020, 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 November 24, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. At the time of events giving rise to this complaint, Complainant was employed as a VN-0610-II Registered Nurse/Mental Health Case Manager at the Agency’s Anderson, South Carolina Community Based Outpatient Clinic. On January 27, 2020, Complainant filed an EEO complaint, which she subsequently amended, alleging discrimination by the Agency on the basis of race (African-American) when: 1. On March 7, 2019, the Primary Care Nurse Manager (NM-1) requested that Complainant refer to her as supervisor, when NM-1 is not Complainant’s supervisor; 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. 2021001403 2 2. On March 13, 2019, NM-1 refused to allow Complainant to use clinic patient examination rooms, insisting Complainant use her office as an exam room; 3. On July 24, 2019, NM-1 defamed Complainant’s work ethic when she sent several emails Agency-wide that falsely accused Complainant of not providing care for a veteran patient and sent Complainant several Skype instant messages; 4. From July 31, 2019, to present, Complainant reported the hostile work environment to the EEO Program Manager, her direct supervisor (NM-2), the Associate Nurse Executive, and union officials, but, to date, management has taken no action or inadequate action; 5. On October 16, 2019, a Nurse (RN-1) was aggressive toward Complainant and falsely reported to NM-1 that Complainant refused to see a patient; 6. On October 17, 2019, Complainant was subjected to a criminal investigation initiated by NM-1 after RN-1 accused her of possessing a 9-milimeter handgun, which resulted in a search of Complainant’s office and personal possessions; 7. On November 27, 2019, NM-1 accused Complainant of failing to provide a report on a veteran patient in the clinic and defamed Complainant’s work ethic; 8. On March 25, 2020, NM-1 refused to provide Complainant with personal protective equipment for Covid-19 screening; and 9. On April 16, 2020, NM-1 violated a “no contact” order when she assigned Complainant a task in Primary Care. 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). Complainant timely requested a hearing. The AJ issued a Notice of Intent, on November 3, 2020, stating that he planned to issue a decision without a hearing in the Agency’s favor unless Complainant identified genuine issues of material fact that required a hearing. In response to the Notice of Intent, Complainant sought to amend her complaint to add sex, reprisal, and intersectional discrimination as bases. Complainant also requested the opportunity to conduct discovery and generally argued that a decision without a hearing would be inappropriate. On November 20, 2020, the AJ 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). 2021001403 3 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 review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. de novo 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 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. Although Complainant contends that summary judgment was premature before discovery, she has not explained why supplementation of the record through the discovery process was necessary. Moreover, to the extent Complainant contends that the AJ erred in not allowing her to amend her complaint, Complainant has not identified any genuine issues of material fact, even as it relates to sex discrimination, reprisal, and/or intersectional discrimination. 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 the parties’ 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. 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. 2021001403 4 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2021001403 5 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yolanda P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001466 Hearing No. 470-2018-00309X Agency No. 200J-0583-2016104502 DECISION 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 October 2, 2020, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant (MSA), GS-6 at the Agency’s Domiciliary Treatment Program facility in Indianapolis, Indiana. On October 13, 2016, Complainant filed an EEO complaint alleging that the Agency retaliated against her for protected EEO activity and subjected her to discrimination on the bases of race (Black/Hispanic) and disability (mental/physical) 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. 2021001466 2 1. Beginning April 29, 2016, and continuing, Complainant’s first line supervisor (RMO1), sends emails to Complainant insisting that she come to her office for meetings although Complainant requested to meet in Complainant’s office due to her disability. 2. On May 9, 2016, RMO1 asked Complainant to provide medical information as to why she cannot walk to RMO1's office for meetings. 3. On May 16, 2016, RMO1 coldly stated to Complainant that she expected Complainant to be like RMO1's previous employee. 4. On May 23, 2016, RMO1 assigned additional duties to Complainant (creating graphs and charts). 5. On June 13, 2016, Complainant's reasonable accommodation request was initially denied. 6. On June 16, 2016, RMO1 gave Complainant a written counseling regarding her sick leave usage.2 7. On June 24, 2016, RMO1 gave Complainant additional duties (monitoring work orders and follow-up) which are beyond Complainant's pay grade. 8. On June 27, 2016, RMO1 waited until the last minute to sign-off on Complainant's leave request. 9. On June 28, 2016, RMO1 harassed Complainant about purchase orders. 10. On July 6, 2016, RMO1 requested Complainant's medical documentation to support her continued need to have meetings in Complainant's office. 11. On July 11, 2016, RMO1 made Complainant request authorized absence in order for her to attend an internal job interview. 12. On July 13, 2016, RMO1 emailed Complainant to inform her that her use of Family Medical Leave Act (FMLA) was negatively impacting veteran patients. 2 The Agency accepted claims 4, 5, and 6 as part of the harassment claim but dismissed them as discrete acts because they were not raised within 45 days of occurrence. 29 C.F.R. §1614.107(a)(2). As Complainant has not disputed the dismissal on appeal it will not be addressed. 2021001466 3 13. On July 14, 2016, RMO1 became confrontational, argumentative, and unprofessional with Complainant when she stated loudly, "I'm not done talking to you." RMO1 followed Complainant from her office to the "PH" office and stated, "Just answer your door." 14. On July 14, 2016, RMO1 accused Complainant of sending restricted emails. 15. On July 25, 2016, Complainant's reasonable accommodation (telework/flex schedule) was again denied. 16. On July 25, 2016, RMO1 sent a barrage of emails to Complainant. 17. On July 25, 2016, RMO1 sent a follow-up email to a coworker (CW1) asking if Complainant had responded to CW1's original email. 18. On July 27, 2016, RMO1 required Complainant to take a Fitness Test although Complainant's disability makes the requirement unadvisable at this time. 19. On July 29, 2016, RMO1 began requesting detailed information from Complainant in a disrespectful and unprofessional manner, which RMO1 does not exhibit with other employees. 20. On July 29, 2016, RMO1 accused Complainant of missing work deadlines. 21. On August 3, 2016, RMO1 instructed Complainant to look out for RMO1's visitor and to show him to the multipurpose room. RMO1 does not ask other staff to do this task. 22. On August 4, 2016, RMO1 responded to CW1's email (to Complainant), making Complainant look bad and offered no support to Complainant. 23. On August 5, 2016, RMO1 accused Complainant of sending restricted emails and of failing to follow orders. 24. On August 5, 2016, and continuing, RMO1 sends Complainant harassing and unrealistic emails that require Complainant to be overloaded and requires Complainant to spend an inordinate amount of time responding to the emails instead of accomplishing work. 25. On August 12, 2016, RMO1 accused Complainant of not being in her office and not answering her door when she knocks. 2021001466 4 26. On August 18, 2016, RMO1 sent Complainant an email that was also sent to Complainant's chain of command in an effort to show Complainant was not doing her job. 27. On August 18, 2016, RMO1 provisionally approved Complainant's request for FMLA pending confirmation of her leave approval. 28. On August 18 and 19, 2016, RMO1 again accused Complainant of not answering her door. 29. On August 22, 2016, and August 25, 2016, RMO1 denied Complainant's request for Compensatory Time. 30. On August 24, 2016, RMO1 shut off Complainant's purchase card and took the duty away from her. 31. On August 29, 2016, RMO1 lied about the number of bus passes Complainant had provided to her.3 32. On September 14, 2016, Complainant was surprised to learn that VA police were conducting an investigation regarding her. 33. On September 26, 2016, Complainant received a proposed three-day suspension. 34. On September 27, 2016, RMO1 attempted to deny several dates of Complainant's FMLA because Complainant did not give RMO1 medical documentation. 35. Since September 15, 2016, and continuing, RMO1 has taken away most of Complainant's work assignments and duties to include PIV, Timekeeping, Purchaser and Work Orders, and Complainant receives little to no communication from her chain of command. 36. On October 14, November 3, November 9, and November 14, 2016, RMO1 sent Complainant harassing emails. 37. On November 4, 2016, RMO1 deliberately withheld information regarding private meetings to keep Complainant from putting into place protective measures. 38. On November 9, 2016, RMO1 verbally confronted Complainant in front of a coworker. 3 As this allegation does not appear to be a discrete act, we shall consider it in the context of Complainant’s harassment claim only. 2021001466 5 39. On November 21, 2016, RMO1 gave complainant a Fully Satisfactory performance rating that Complainant felt was too low. 40. On November 22, 2016, RMO1 requested other staff to "track" Complainant. 41. From April 21, 2016, to the present, the Local Reasonable Accommodation Coordinator (LRAC) engages in obfuscation of the reasonable accommodation process: repeatedly requesting medical documentation that was already provided; failing to adhere to the reasonable accommodation process within prescribed time frames; closing out the reasonable accommodation request without authority; and failing to involve Complainant in the interactive process. 42. From April 2016, to December 20, 2016, RMO1 failed to give Complainant key access to her building and she had to sit in a dark parking lot and wait for someone to let her in to the building. 43. In September 2016, RMO1 removed complainant's MSA duties from her. 44. On December 7, 2016, RMO1 moved Complainant from her office to a desk in the corridor outside of RMO1's office. Complainant's desk faces the wall while her back is exposed to the open hallway. Complainant has no privacy and RMO1 watches Complainant all day. 45. On December 12, 2016, Complainant's reasonable accommodation was denied (telework). 46. On December 12, 2016, LRAC sent an email recommending that RMO1 counsel Complainant regarding computer access (recommending disciplinary action above and beyond LRAC's job function). 47. On January 9, 2017, LRAC continues deliberate refusal to provide reasonable accommodation (an office with a door that closes, a window, locks, and telework), will not provide notice of denial or acceptance of reasonable accommodation, and deliberately makes the reasonable accommodation process difficult by attempting to start process over again and requesting medical documentation again. 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 her request. Consequently, 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 as alleged. 2021001466 6 Complainant filed the instant appeal. 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”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). 2021001466 7 Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). In order to establish a claim of harassment, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In order to meet the requirements of prong 4, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). After a review of the record, we find that Complainant failed to prove by the preponderance of the evidence that she was discriminated against as alleged. Even assuming Complainant could establish a prima facie case of discrimination, she failed to show that the Agency’s reasons for its actions were pretext for discrimination. Reasonable Accommodation: Claims 5, 15, 41, 45, 47 Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). 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 EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice 2021001466 8 No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). An Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A modification or adjustment is “reasonable” if it appears to be “feasible” or “plausible.” Enforcement Guidance at 4. An accommodation also must be effective in meeting the needs of the individual and enable the employee to perform the essential functions of the position. Id. at 4-5. Complainant asserts that she was consistently denied reasonable accommodations for her disabilities and that the Agency subjected her to discrimination and harassment in its handling of her requests. The Commission finds that Complainant has failed to establish that she was denied a reasonable accommodation. The evidence shows that Complainant had a permanent condition of posttraumatic stress disorder (PTSD). In addition, on February 26, 2016, Complainant had a major surgery that resulted in severe anemia. On April 15, 2016, she returned to work with restrictions. On April 28, 2016, Complainant requested a reasonable accommodation for her anemia. She asserted that her anemia caused dizzy spells, fainting, and heart palpations. She requested the ability to telework as an accommodation and she submitted medical documentation dated April 26, 2016, to LRAC. The Agency indicated that the medical documentation was insufficient and explained to Complainant that her physician needed to explain the nature of the limitations her anemia condition caused. The Agency further determined that Complainant could not perform the essential functions of her job as a medical support assistant remotely. On May 12, 2016, LRAC received medical documentation dated May 6, 2016, indicating that the anemia should be resolved, and Complainant was on the appropriate medication. On May 13, 2016, Complainant provided additional medical documentation from her physician indicating that her anemia had not resolved, and her treatment may persist until mid-June. In a May 20, 2016 email, LRAC indicated to Complainant that based on the new medical information, her reasonable accommodation request was reopened. LRAC informed Complainant that her essential functions required her to work on site and that telework was not feasible. 2021001466 9 On June 13, 2016, LRAC held a meeting with Complainant and RMO1 to deny her request and discuss why telework was not an option. Management provided Complainant with a wheelchair, which Complainant stated was not acceptable because she was too weak to use it. The Agency asked if there was another accommodation that could be provided, and Complainant stated she did not know. On June 29, 2016, Complainant emailed LRAC a reasonable accommodation request and stated that it was a continuation of her April 2016 request. She requested the ability to teleconference to all meetings, flexible work schedule, telework, and restructuring of her current position to allow for telework. On June 30, 2016, LRAC emailed Complainant and requested that she provide medical documentation addressing the requested accommodations by July 14, 2016. Complainant did not submit additional information. On July 15, 2016, LRAC provided documentation and information to Regional Counsel for advice regarding Complainant’s reasonable accommodation request. On July 21, 2016, Regional Counsel advised that the medical documentation was insufficient to support the request. On July 25, 2016, the Agency issued a determination denying Complainant’s request and explaining that her physician needed to specify the limits of her restrictions and address whether the restrictions were permanent or temporary. It noted that the medical documentation she provided to LRAC dated April 28, 2016, May 6, 2016, and May 12, 2016, did not contain the required information. The record shows that on or around December 7, 2016, the department relocated to a new building. In the prior location, Complainant had an office with a locking door. In the new space she was assigned to a desk that was in an exposed hallway. On December 9, 2016, Complainant submitted a request for an office space with a window and a locking door. Notably, there is no record that Complainant was denied a reasonable accommodation of telework on December 12, 2016, as alleged. Complainant may have gotten her dates confused regarding claim 45 (December 12, 2016 denial of telework), but there is no dispute that Complainant was never, during this time frame of the complaint, allowed to telework. On December 21, 2016 Complainant requested a reasonable accommodation of an office space with dimensions of 200 square feet or greater, a window, and door that closes with a lock. Medical documentation indicated that her medical condition is triggered when confined to spaces of 200 square feet or less. On December 27, 2016, Complainant emailed RMO1 requesting to move to a basement office, but it was determined that the requested room did not comply with the medical requirements and did not allow Complainant to be available to veterans and staff. 2021001466 10 On January 9, 2017, LRAC approved Complainant’s reasonable accommodation request and recommended she relocate to the reception area, which was over 460 square feet with windows and was the least confining area in the building. Complainant responded that the reception area did not comply with her request. On January 13, 2017, Complainant submitted new medical documentation requesting “an individual office with dimensions of 150-200 square feet or greater, this would include a private office with a window and a door that closes with a lock.” On January 19, 2017, LRAC contacted Complainant to schedule a meeting to address why the Agency could not provide her exact accommodation. After a January 31, 2017 meeting with Complainant and her union representatives, the reasonable accommodation was provided to Complainant on February 2, 2017. On April 11, 2017, Complainant submitted an additional request stating that her disability had worsened over the past several months since her December 2016 reasonable accommodation request. She requested telework for five days with possible allowance for weekly face to face meeting to discuss assignments if/when necessary to coordinate her weekly assignments for her home environment. She submitted medical documentation to LRAC in support of her request on April 19, 2017. On April 30, 2017, Complainant was reassigned to another facility and assigned a new supervisor. LRAC contacted Complainant’s new supervisor who indicated that Complainant could not perform the essential functions of her job remotely. On May 10, 2017, Complainant requested that her desk face the door and contain a peep hole. A June 8, 2017, determination indicates that the department provided the accommodation of a peep hole in the office door and a personal panic device. The Agency also recommended a mirror, which Complainant declined. The Agency explained that the desk could not be configured facing the door because with the small space it would not comply with the Americans with Disabilities Act (ADA). The determination further stated that telework for the position was not applicable because of the time frames needed to process scanning of sensitive documents that impact patient care. Complainant has failed to establish that the Agency denied her a reasonable accommodation. Regarding claims 15, 45, and 47, the Agency asserted that Complainant’s request for telework was denied because she had several essential duties that had to be completed on site. We agree with the Agency. Complainant’s duties included customer service and scanning of documents including patient information, patient care, releases of information, advance directives, and court orders. These tasks were time sensitive and given the private nature of the documents it would be an undue burden on the Agency to permit Complainant to telework. In addition, at any point when her medical documentation was insufficient, she was informed of such and given the opportunity to provide additional information. The medical records in the record are insufficient to show that any claimed disability necessitated telework. 2021001466 11 Even if the medical record supported the need for telework, because Complainant herself was responsible for the scanning, we find that the Agency has met its burden to show that allowing telework for Complainant would have been an undue burden. To allow Complainant to telework would have meant very private, personal medical information would have been physically leaving the office such that security and privacy of that information could not be maintained. Regarding claim 41, the Commission finds that the record does not support Complainant’s contention that LRAC attempted to obfuscate the reasonable accommodation process. The record shows that LRAC was responsive to Complainant’s inquiries regarding her requests, consistently provided her with the necessary forms to aid in the processing of her request, sought guidance from Regional Counsel as needed in processing her requests, and informed her of what medical information was required to process her reasonable accommodation requests. Thus, Complainant failed to establish that the Agency denied her any of her requested reasonable accommodations. Disparate Treatment and Harassment Complainant asserts that management discriminated against her based on her race, disability and retaliated against her for filing an EEO complaint. However, Complainant has failed to rebut the Agency’s legitimate. nondiscriminatory reasons for its actions. On April 29, 2016, newly hired RMO1 was assigned as Complainant’s onsite supervisor. Prior to April 29, 2016, Complainant had an offsite manager. Regarding claim 1, RMO1 explained that she met with all her subordinates in her office because it was private, and they discussed confidential information. Complainant refused to meet with RMO1 in her office. Complainant indicated that she was unable to walk to RMO1’s office due to her anemia. However, several individuals indicated that Complainant was able to ambulate within the office and we find that Complainant did not provide any evidence of a medical necessity requiring that she attend meetings only in her own office. Regarding claim 7, RMO1 explained that part of her goal as a new supervisor was to improve processes and functioning of the department. RMO1 assigned Complainant additional tasks including monitoring work orders, which Complainant alleges were beyond her pay grade. RMO1 asserted that she requested that Complainant complete these tasks because they were included in her functional statement. However, Complainant refused to do the tasks. Regarding claim 18, Complainant alleged RMO1 required Complainant to take a fitness test although Complainant’s disability made it unadvisable. The record shows that the “fitness test” was a fitting for biohazard masks. RMO1 forwarded the information from higher management to Complainant, and Complainant informed RMO1 that she was not required to participate. 2021001466 12 Ultimately, Complainant never actually had to take what Complainant described as a “fitness test”, so we find no violation of the Rehabilitation Act by the Agency. Nor do we find the request for the fitting of the mask was motivated by discrimination. Regarding claim 29, the Agency asserted that Complainant’s request for compensation time was denied because the tasks she needed to complete were part of her regular duties and she did not provide a justification for why they could not be completed during her normal tour of duty. Regarding claim 30, the record shows that management requested that all purchase card holders submit a tracking form with all purchases for the year by a certain date. When Complainant did not submit her tracking form by the deadline, management requested that her purchase card be turned off so that she could not make any other purchases. Regarding claim 33, Complainant’s second line supervisor (RMO2) indicated that he issued a proposed suspension because Complainant refused to adhere to RMO1’s request that she limit her use of restricted emails. RMO2 also noted that customers witnessed Complainant slam a door in RMO1’s face and submitted a statement to that effect. Thus, he felt Complainant should be cited for conduct unbecoming of a federal employee. Complainant appealed the proposed suspension to the Director, and it was not upheld. Regarding claim 35, Complainant asserts that RMO1 took away most of her work assignments including PIV, timekeeping, purchases, and work orders. The record shows that she was relieved of her responsibilities as a purchaser because she did not meet the deadline to submit her purchase tracking form. In addition, Complainant refused to complete work orders because they were above her pay grade. The record further showed that she continued to be responsible for timekeeping and PIV, and she continued to have communication with management. Regarding claim 39, Complainant asserts that RMO1 discriminated against her by providing her a “fully satisfactory” performance rating. Complainant asserts that she deserved a higher rating because just three months prior to RMO1’s hiring she received excellent and outstanding performance ratings. She further asserts that her performance was of the same quality as prior years and she completed additional tasks including creating a timekeeper book to assist in training other employees. The Agency asserts that Complainant’s performance did not warrant an evaluation higher than “fully successful” because she had lost her purchase card responsibility, refused to follow RMO1’s directives with respect to tracking supplies, and she overall did not go above what was required of her to warrant an evaluation that exceeded “fully successful.” Regarding Complainant’s “fully successful” evaluation, the Commission has held that prior receipt of a higher rating alone does not support an inference that discrimination or retaliation motivated a subsequent lower rating. See Complainant v. Dep’t of State, EEOC Appeal No. 01995660 (Jan. 24, 2002), request to reconsider denied, EEOC Request No. 05A20450 (May 24, 2002) (concluding that prior receipt of “outstanding” ratings does not obligate supervisors to continue giving a plaintiff such ratings). 2021001466 13 Complainant asserts that the Agency was motivated by racial discrimination because RMO1 allegedly referred to herself as an “overseer.” Complainant asserts the term is historically related to slavery and is therefore discriminatory in nature. RMO1 denied using the term and Complainant has provided no evidence other than her own statements to establish this. Complainant also generally asserts the Agency’s actions were related to race because she was the only person subjected to these actions and there were no White employees treated this way. Complainant further alleges that the Agency’s asserted reasons are pretext for disability discrimination because RMO1 allegedly told her that she could not be concerned with Complainant’s health because it was her job to make sure the job ran properly. Complainant asserts that the Agency’s actions are retaliatory because once she informed management of her intention to file a complaint, the alleged harassment became more frequent. However, Complainant provides no evidence other than her own opinion to support these contentions. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). In addition, she has not shown that there were similarly situated employees not in her protected groups that were treated more favorably regarding any of the claims. She names several employees outside her protected classes that were reportedly not subject to the same actions but acknowledges that they were social workers - thus they did not have the same position or responsibilities as her. To be considered “similarly situated,” the comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Complainant v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001), req. for recon. denied, EEOC Request No. 05A20020 (Jan. 28, 2002) (citations omitted). Here, Complainant failed to establish that a similarly situated employee was treated more favorably than her. In sum, Complainant failed to show that the Agency’s asserted legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination. Thus, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. 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 the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 2021001466 14 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). 2021001466 15 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danita S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021001622 Hearing No. 570-2019-00204X Agency No. HS-ICE-02115-2017 DECISION 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 November 17, 2020, 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 accepts the appeal in accordance with 29 C.F.R. § 1614.405. At the time of events giving rise to this complaint, Complainant worked as a contract Administrative Professional/Mission Support Specialist at the Agency’s Law Enforcement Information Sharing Initiative in Washington, D.C. On August 27, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (Hispanic),2 national origin (Puerto Rican), and sex (female), and in reprisal for prior protected EEO activity (EEO contact on May 1, 2017), 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. 2 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. However, herein the Commission acknowledges Complainant’s self-identification of her race as Hispanic. 2021001622 2 1. from February 2017 to July 26, 2017, the Agency’s Alternate Contracting Officer’s Representative (ACOR) sexually harassed Complainant when he repeatedly stared at her in a sexual manner when he looked at her breasts and behind, and he stared at her up and down when she walked by him to get supplies or go to the printer; 2. from February 2017 to July 26, 2017, ACOR was rude, overbearing, loud, vulgar, and generally unpleasant to Complainant, and her clarification requests on projects resulted in ACOR becoming argumentative and belittling in his responses to her; 3. in February 2017, ACOR asked Complainant to identify her “racial composition”; 4. in June 2017, after ACOR heard Complainant speaking in Spanish, he said, “it should be illegal to speak Spanish in the workplace”; 5. on June 19, 2017, during a meeting with ACOR and the Section Chief, ACOR yelled and cursed at Complainant, and on June 22, 2017, Complainant informed her employer that ACOR has created a hostile work environment, based on race, national origin, sex, and reprisal; and 6. on July 26, 2017, Complainant’s employer terminated her “without cause.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency found that it was a common law joint employer during the relevant time. The Agency then determined that a management official articulated a legitimate, nondiscriminatory reason for Complainant’s termination. The Section Chief stated that Complainant lacked the requisite education and her conduct caused the request for a change in the contract personnel. Specifically, the Section Chief averred that Complainant was snarky, hostile, and rude to ACOR; challenged ACOR’s leadership qualifications; and attempted to initiate an argument with ACOR. The Section Chief testified that she counseled Complainant about her behavior, but to no effect. The Agency then found that Complainant did not establish that the reasons were pretext for discrimination; rather, the record was replete with evidence corroborating Complainant’s disruptive conduct. Regarding the sexual harassment claim, Complainant asserted that a coworker (CW) witnessed ACOR’s behavior, but the Agency found that CW testified that she did not witness the alleged conduct, which ACOR denied. Further, the Section Chief and other management officials averred that Complainant never reported this alleged conduct. With respect to the non-sexual harassment claim, the Agency determined that Complainant did not provide evidence that the alleged harassment was connected to a protected class. 2021001622 3 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Standard of Review 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 Chap. 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”). Termination (Claim 6) 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 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. Affairs 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her race, national origin, and sex, and in reprisal for prior protected EEO activity, we find that the Agency’s final decision correctly determined that management officials proffered legitimate, nondiscriminatory reasons for Complainant’s termination. The Section Chief testified that she asked ACOR to inform Complainant’s employer to remove Complainant from the contract due to “many incidents,” and that counseling did not correct her behavior. For example, the Section Chief recalled a time when she heard Complainant speaking rudely to ACOR and stated, “ok, that’s enough.” The Section Chief noted that, after counseling, Complainant’s “good behavior” only lasted a couple of weeks. ROI at 347. Through her attorney, Complainant alleges that her supervisors expressed their intent to fire her after she filed her EEO complaint. 2021001622 4 Complainant asserts that the Vice President of her company called her and asked why she filed an EEO complaint “against the customer” and stated that she did not have the right to file an EEO complaint.3 While the Vice President signed Complainant’s official termination letter, we note that the Section Chief averred that she alone made the decision to remove Complainant from the contract. Complainant has note alleged that the Section Chief had a retaliatory motive. ROI at 347. Complainant also avers that CW overheard ACOR state, “I will make sure [Complainant] is fired.” Complainant contends that CW testified that, when ACOR first learned of Complainant’s EEO activity, he was “determined to fire her.” However, CW provided no such testimony. Rather, CW confirmed that she heard ACOR make this statement, but she did not connect it to Complainant’s EEO activity or any other protected basis. CW specified that she did not witness anything that would be considered prejudice based on Complainant’s race, national origin, sex, or protected EEO activity. ROI at 426-7. ACOR was not asked for a response to this statement. While ACOR did not dispute having issues with Complainant, he explained that it was based on her resistance to taking technical direction or guidance and a negative attitude. ACOR described Complainant’s behavior as disruptive and unprofessional, which progressively deteriorated as time went on. ROI at 277. To the extent that Complainant blames ACOR for her termination, ACOR stated that he served as the action officer to initiate the request for Complainant’s removal from the contract, and his role was limited to contacting Complainant’s employer to begin the process. ROI at 275. Complainant argues that the Agency’s reasons were pretext for discrimination. Complainant asserts that the Agency provided three reasons for her removal: (1) lack of education requirements; (2) misconduct; and (3) declining work performance; however, each is demonstrably false. Regarding the education requirement, Complainant contends that it “strains credulity” to suggest that, after she made an EEO complaint, the Agency, by chance, revisited her suitability for the position. However, the Section Chief explained that Complainant “let slip” that she did not have a bachelor’s degree. Section Chief Declaration at 2. There is no evidence that the Section Chief “revisited” Complainant’s suitability for her position following Complainant’s EEO activity. See id. We also note that Complainant does not dispute she lacked the required education qualifications at the time of her termination. Complainant avers that the support for her removal based on misconduct was “entirely subjective, conclusory, and based on the accused harasser’s [ACOR’s] perception.” However, the Section Chief described witnessing Complainant’s misconduct. According to the Section Chief, in another example, Complainant was hostile towards ACOR about a work project and was “trying to start a verbal fight” with him. 3 The Vice President stated that he would not return a completed affidavit for Complainant’s EEO complaint since he was not a government employee. ROI at 450. Even crediting Complainant’s assertion, since the Vice President is not an Agency employee or even a contractor with the Agency, his statements cannot be attributed to the Agency. 2021001622 5 The Section Chief stated that, when Complainant rudely questioned ACOR’s leadership experience, she counseled Complainant about her behavior. ROI at 345. The Section Chief added that she counseled Complainant over twenty times. Moreover, the Section Chief noted that Complainant’s behavior caused her health issues, such as high blood pressure and difficulty breathing, and she visited the nurse seven times in 2017. Section Chief Declaration at 2. Complainant asserts that the Agency also suggested that her work quality was declining, but it did not indicate which assignments were lacking, or whether she had been counseled on such performance deficiencies. However, the Section Chief did not claim to have based Complainant’s termination on her work quality. We find that Complainant did not show that the proffered reasons are not worthy of belief and her bare assertions, that management officials discriminated against her, are insufficient to prove pretext or that her termination was discriminatory. Accordingly, we find that the Agency properly found that Complainant did not establish discrimination based on race, national origin, or sex, or in reprisal for prior protected EEO activity, when it removed her from the contract. Sexual Harassment (Claim 1) Regarding claim 1, Complainant asserts that ACOR subjected her to “blatant sexual harassment,” which she reported to the Section Chief. However, ACOR denied the allegations and the Section Chief averred that Complainant never mentioned the alleged conduct by ACOR. ROI at 268, 340. In this case, since Complainant withdrew her hearing request, we do not have the benefit of any credibility determinations by an Administrative Judge. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). No witness provided any testimony to corroborate Complainant’s allegations of ACOR’s alleged sexual harassment. Therefore, Complainant failed to establish that she was subjected to sexual harassment. Non-sexual Harassment (Claims 2-5) We also find that Complainant did not establish that she was subjected to non-sexual harassment. With respect to claim 4, ACOR denied making the alleged statement, but admitted to wondering aloud to himself if the Agency had a language policy like the Army. ROI at 272. He researched the matter but did not find any information. See id. Even assuming, arguendo, that Complainant was subjected to unwanted verbal conduct based on her protected classes for incidents 3 and 4, the evidence does not support that the remaining alleged conduct of “rude, disparaging, and mocking comments” (claim 2), or ACOR yelling and cursing at Complainant (claim 5), was 2021001622 6 based on any protected class. Overall, we find that Complainant did not establish that she was subjected to severe or pervasive conduct that rises to the level of unlawful harassment. In addition, there is no evidence that Complainant reported the alleged harassment to management officials. The record shows that Complainant filed an EEO complaint on May 1, 2017, against a different coworker, but Complainant has not provided evidence that she reported ACOR’s alleged harassment prior to the instant EEO complaint.4 ROI at 155-7. Complainant claimed that on June 22, 2017, she informed her employer that ACOR created a hostile work environment based on race, national origin, sex, and reprisal. However, a review of Complainant’s June 22, 2017 email to her Project Manager does not show that she reported ACOR’s harassment due her protected classes. Rather, Complainant complained that her Team Lead was unprofessional and had told her that if she “did not correct [her] attitude, there would be repercussions.” ROI at 167-8. Further, the Section Chief, Deputy Assistant Executive Director, Unit Chief, and a Former Team Lead (Contract) all testified that they did not witness the alleged behavior and that Complainant did not report any harassment by ACOR. ROI at 349, 360, 392, 462-3. Upon careful review of the Agency’s decision and the evidence of record, and the contentions on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. 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 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. 4 In April 2018, the Agency also completed an internal investigation into Complainant’s allegations against ACOR. No one witnessed ACOR harassing Complainant. Moreover, the Agency found that Complainant was consistently described as hostile, angry, and refusing to take direction. ROI at 515-38. 2021001622 7 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. 2021001622 8 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 William G.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021001634 Hearing No. 560-2018-00178X Agency No. 9V1M17007 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, 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. During the relevant time, Complainant was employed by the Agency as a Child and Youth Program Assistant, CY-1702-03, at Tinker Air Force Base, Oklahoma. On February 10, 2017, Complainant filed a formal complaint and claimed discrimination by the Agency based on race (Hispanic), sex (male) and in reprisal for prior protected activity when: 1. On July 7, 2016, his 3rd level supervisor temporarily reassigned him from the Youth Center to Outdoor Recreation due to a sexual assault report filed against Complainant. 2. On or about August 15, 2016, Complainant's 2nd and 3rd level supervisors reduced Complainant's hours from 30-40 plus hours a week to 20 hours a week. 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. 2021001634 2 3. On or about August 1, 2016, Complainant was told by his 2nd level supervisor that he was being reassigned from Outdoor Recreation to the Family Child Care for better opportunities but was assigned remedial work. 4. On October 20, 2016, Complainant’s 2nd and 3rd level supervisors denied his request to be reassigned to the Child Development Center West, Child Development Center South, or Youth Center. 5. On October 23, 2016, Complainant’s 3rd level supervisor did not address Complainant's safety concerns. 6. On October 23, 2016, Complainant's 2nd and 3rd level supervisors permanently transferred him to the Child Development Center East without notification. 7. On September 24, 2016, Complainant's 3rd level supervisor and a human resources specialist did not afford Complainant the opportunity for quarterly flight training and 3 hours of work. 8. On September 24, 2016, Complainant's 3rd level supervisor and a human resource specialist jeopardized Complainant's safety and legal concerns by allowing a co-worker to be in the same vicinity as Complainant. 9. On October 27, 2016, Complainant's 2nd and 3rd level supervisors denied Complainant the right to have an Advocate during a work meeting. 10. On October 23, 2016, Complainant's 3rd level supervisors tried to discuss unauthorized issues without Complainant's attorney being present. 11. On October 25, 2016, Complainant's human resource specialist denied Complainant an opportunity to volunteer coach. 12. On November 2, 2016 Complainant’s 2nd level supervisor denied Complainant's leave without pay request from November 3, 2016 to February 1, 2017. 13. On November 2, 2016, Complainant's 2nd level supervisor did not address Complainant's safety concerns. 14. On November 3, 2016, Complainant lost 5 hours of pay because he was not told where to input his time and was not put on the schedule. 15. On November 29, 2016, Complainant’s 3rd level supervisor denied extended leave without pay contrary to procedures because Complainant would not invoke Family and Medical Leave Act (FMLA) rights. 2021001634 3 16. On December 2, 2016, Complainant's 3rd level supervisor officially denied Complainant's request for extended leave without pay request from December 2, 2016 to February 1, 2017. 17. On December 23, 2016, Complainant's 2nd level supervisor, 3rd level supervisor and a human resource specialist interfered with the FMLA process by denying sick leave with an attached medical letter. 18. On December 5, 2016, Complainant's 3rd level supervisor denied his 2nd request for extended leave without pay from December 2, 2016 to February 1, 2017. 19. On December 15, 2016, Complainant's 1st level supervisor denied Complainant's request for accrued sick leave from December 12, 2016 to February 1, 2017. 20. On December 15, 2016, Complainant's 1st level supervisor denied Complainant's request for leave without pay from December 2, 2016 to February 1, 2017. 21. On December 16, 2016, Complainant received a Notice of Proposed Removal via certified mail issued by his 1st level supervisor. 22. On December 16, 2016, Complainant's 2nd level supervisor and 3rd level supervisor denied Complainant's request for a non-formal investigatory interview as outlined in the NAF AFGE MLA, Contract for Child Development Programmers Section 5.03: Non- Formal Investigatory interviews and representational Rights, part one. 23. On December 23, 2016, Complainant's 2nd level supervisor denied Complainant's request for accrued sick leave when Complainant provided medical documentation for December 2, 2016 to February 1, 2017. 24. On December 23, 2016, Complainant's 3rd level supervisor violated Complainant's privacy when his 3rd level supervisor discussed Complainant's current District court case in an open forum. 25. On December 9, 2016, Complainant's 3rd level supervisor ignored Complainant's implied FMLA request. 26. On February 4, 2017, Complainant received a Notice of Final Decision to Remove dated January 30, 2017, from his 2nd level supervisor, effective January 30, 2017. 27. On January 30, 2017, NAF human resources did not give Complainant an out-processing briefing or mail Complainant the necessary employment documents after his removal. 2021001634 4 28. On June 5, 2017, Complainant discovered that Tinker Air Force Base human resources personnel had not forwarded Complainant's records to the National Personnel Records Center, thereby delaying the receipt by Complainant of a copy of personnel records he had requested on May 19, 2017. After its investigation, 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. 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 of no discrimination. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. The AJ reviewed each claim and found that Complainant failed to show that the Agency’s reasons for its actions were pretext for discrimination on any of the raised bases. Specifically, the AJ found that the Agency demonstrated a reasonable basis for moving Complainant to a work different area after a co-worker filed a claim of sexual assault against him. The two employees needed to be separated during the investigation of the incident per Agency policy, as well as pursuant to a protection order obtained by the alleged victim. Both employees were placed on a no-contact order by management. Regarding the reduction in hours, the AJ found it undisputed that the hours of many employees were similarly reduced each year at the end of summer because children returned to primary schools. 2021001634 5 Evidence also showed that Complainant specifically requested to be reassigned from Outdoor Recreation and agreed to move to childcare. He was reassigned to the CDC East because it was short-staffed, and he had experience with school-age children. Regarding his requests for LWOP leave, the record shows that while Complainant was not approved for all the leave he requested, he was provided with 30 days of LWOP, the maximum his supervisor had the authority to approval. Any LWOP over 30 days had to be approved by a higher authority. Complainant’s “safety” concerns related to his interactions with the employee who accused him of sexual assault, and it appears those concerns were resolved by the imposition of the no-contact order to both employees. It is undisputed that Complainant’s request for FMLA leave was denied, but he did not adequately rebut the Agency’s assertion that he failed to submit requested medical documentation supporting his FMLA claim. Finally, regarding Complainant’s separation from Agency employment, the AJ expressly determined that Complainant had been continuously absent from work since December 2, 2016, which was the date of his approved LWOP expiration, and Complainant thereafter failed to report to work as directed. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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 without a hearing, finding no discrimination. 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). 2021001634 6 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. 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. 2021001634 7 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Syreeta P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001828 Hearing No. 480-2020-00266X Agency No. 4F-926-0077-19 DECISION 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 December 15, 2020, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisor, EAS-17, at the Agency’s Glendora Post Office in Glendora, California. On July 6, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on disability (diabetes), age (YOB: 1959), and in reprisal for prior protected EEO activity (accommodation request and instant complaint) 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. 2021001828 2 1. on about March 12, 2019, Complainant requested a specific lunch time to accommodate her diabetic medical condition and the Postmaster responded in a negative manner; 2. since February 16, 2019, Complainant was not given adequate time to acclimate to new processes and the Postmaster began to address her for poor performance; 3. on March 18, 2019, the Postmaster yelled at Complainant and told her to retire; 4. on April 2, 2019, Complainant became aware she had been charged 40 hours of absent without leave (AWOL); and 5. on April 5, 2019, the Postmaster stated, “I’m not paying [Complainant] anything until she drops her EEOs.” After its investigation, 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. After receiving and opposition from Complainant, 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 no discrimination. 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). 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 2021001828 3 The AJ correctly determined that Complainant was not subjected to discrimination as alleged. Regarding Complainant’s reasonable accommodation request, the AJ determined that Complainant requested, on March 7, 2019, an accommodation of specific and/or consistent lunch breaks and breaks as needed to address diabetes. The AJ indicated that the Agency granted this request and provided Complainant a specific lunch break time and additional breaks up until Complainant departed from the Agency on March 18, 2019. However, the AJ determined that there was insufficient evidence in the record to support that Complainant ever informed the Agency that this accommodation was inefficient. The AJ further noted that Complainant waited approximately two weeks after she began her position at the Post Office on February 19, 2019 to request this specific accommodation. Therefore, the AJ reasoned that Complainant’s argument, that she was without an accommodation 50% of the approximate 21 days she worked at the Post Office, was unpersuasive given that this time accounted for the period before Complainant requested an accommodation. The AJ further determined that the Agency articulated legitimate, non-discriminatory reasons for charging Complainant 40-hours AWOL. The AJ explained that the record reflected that Complainant abruptly left the Post Office, in the middle of her shift, on March 18, 2019, and the Postmaster, at the direction of Labor Relations, issued the AWOL letter. Consequently, the AJ reasoned that there was no support that the AWOL letter was issued because of Complainant’s protected bases. Regarding the alleged comment in claim 5, the AJ determined that the context of this comment was made between Complainant’s union representative and the Postmaster during settlement negotiations for the instant complaint. Because settlement discussions are considered privileged and confidential, the AJ correctly excluded this claim from the complaint. Regarding Complainant’s harassment claims, the AJ determined that considering these claims, even if true, Complainant has not produced evidence that considerations of her disability, age, or retaliatory animus motivated management’s actions toward Complainant. Specifically, the AJ noted that the Postmaster was a difficult supervisor for subordinate employees regardless of protected status. The AJ determined that the Postmaster’s comments about retirement and Complainant’s need for breaks were inappropriate, but the context of these isolated comments did not support a finding of discriminatory animus. The AJ further determined that the majority of Complainant’s harassment claims (scheduling requirements, performance issues, yelling, and issuance of the AWOL letter) were of a type that arise out of typical workplace conflicts or communications. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no discrimination. 2021001828 4 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. 2021001828 5 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margorie F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021001868 Agency No. 4K-300-0086-20 DECISION On January 14, 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 December 1, 2020 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 During the relevant time, Complainant worked as a Sales, Service, Distribution Associate at the Agency’s Cummings Post Office in Cummings, Georgia. On April 10, 2020, Complainant filed a formal EEO complaint alleging that the Agency unlawfully retaliated against her in reprisal for prior protected EEO activity (Agency No. 4K- 300-0202-19) when, on November 15, 2019 and continuing, she was not afforded the opportunity to work overtime. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). 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. 2021001868 2 When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appealed followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Here, it is undisputed that Complainant had filed a prior EEO complaint in July 2019, which her supervisor knew about. Complainant alleged that, in retaliation for this prior complaint, she was not afforded the opportunity to work overtime hours from November 15, 2019 to September 11, 2020. However, record evidence shows that she actually worked, and was paid for, over 200 hours of overtime during that period. Complainant’s supervisor (“S1”) testified that overtime was assigned on an “as needed” basis, and there was no overtime work available for Complainant on the two specific dates during this period which Complainant identified during the investigation (December 10 and 11, 2019). During the investigation Complainant named a number of other employees, who had not engaged in prior EEO activity, who she claimed were treated more favorably. However, the evidence establishes that these comparators worked different schedules from Complainant which accounted for different overtime opportunities. Significantly, Complainant’s 200 hours of overtime during the relevant period was higher than the overtime hours of any of the comparators during the same period (ranging from 60-75 hours). We note that for one of the specific dates identified by Complainant (December 10, 2019), the record shows Complainant was scheduled to work from 3:00 a.m. to 11:30 a.m. on that date, while Comparator 1 was not scheduled to work on December 10, 2019, and therefore, all 10.67 hours he worked on that day were overtime. Complainant would not have been eligible for overtime on that date until after she worked her regularly scheduled 8 hours. 2021001868 3 In sum, we conclude that the evidence of record fully supports the conclusion that Complainant did not provide sufficient evidence to support an inference of retaliatory animus playing any role in the assignment of overtime to Complainant. Further, the record does not support that others, who were similarly situated, were treated more favorably than she was. Complainant has failed to demonstrate by a preponderance of the evidence that she was subjected to unlawful retaliation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no retaliation in violation of Title VII. 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). 2021001868 4 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allene S.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2021002050 Hearing No. 490-2018-00102X Agency No. IRS-17-0498-F DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s January 13, 2021 final order 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. During the relevant time, Complainant worked for the Agency as a Clerk in Memphis, Tennessee. On June 30, 2017, Complainant filed a formal complaint, claiming that the Agency unlawfully retaliated against her for prior protected EEO activity when: 1. On March 1, 2017, Complainant’s second level supervisor (S2) informed security guards that Complainant’s car registration had expired, and that Complainant had run a security gate. 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. 2021002050 2 2. On April 28, 2017, S2 rescinded a prior grant of a fifteen-minute grace period for late tour of duty arrival and threatened to charge Complainant as Absent Without Leave (AWOL) for any late arrival. 3. On May 3, 2017, S2 pressured Complainant’s first level supervisor (S1) to place Complainant on a leave restriction after S1 issued a Leave Usage Memorandum. 4. On June 8 or 9, 2017, S2 delayed processing Complainant’s workers’ compensation claims and requested additional medical information. After its investigation, 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment, finding no discrimination. 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). 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Here, the Agency acknowledged that Complainant engaged in prior protected EEO activity and that the responsible management officials were aware of Complainant’s prior protected activity but argued that Complainant did not present evidence that any of management’s actions were motivated by retaliatory animus. The AJ concurred. 2021002050 3 Regarding claim 1, the AJ found that Complainant admitted that her registration was expired, and simply speculated as to whether one of her supervisors reported her expired registration, with no proof to corroborate her speculation. Regarding claim 2, the AJ stated that the grace period Complainant was referencing was the Agency’s policy that leave, for timekeeping purposes, was not necessary if an individual was less than fifteen minutes late. The record indicated that Complainant was twenty-two minutes late during the incident at issue. The AJ found that Complainant’s supervisor was acting within his prerogative to direct Complainant to arrive in a timely manner. Regarding claim 3, the AJ found Complainant received a leave usage memorandum, but no restriction. The evidence showed that such a memorandum was a regular occurrence in the workplace, and it was even Complainant’s understanding that all employees received one. Finally, regarding claim 4, the AJ found that Complainant did not submit any evidence that any Agency officials acted in a retaliatory manner, as her workers’ compensation claim paperwork was submitted ten days after Complainant submitted her claim, within a reasonable time period. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was unlawfully retaliated against by the Agency as alleged. We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no retaliation was established. 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). 2021002050 4 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. 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. 2021002050 5 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki B.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021002192 Hearing No. 540-2019-00242X Agency No. 8L1M1800287T DECISION 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 January 17, 2021, final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Contract Specialist, GS-9, at the Agency’s Air Force Sustainment Center in Hill Air Force Base, Utah. On April 11, 2018, Complainant filed a formal EEO complaint. Complainant’s formal complaint consisted of the following matters: 1. Whether complainant was discriminated against based on disability when she was subjected to a continuing denial of reasonable accommodation from April 1, 2016 through February 8, 2018. 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. 2021002192 2 2. Whether Complainant was discriminated against and subjected to harassment based on race (Black), religion (Christian), sex (female), and disability when, on February 8, 2018, she was issued a notice of separation by disqualification during her probationary period. After its investigation into the accepted claims,2 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). Complainant initially requested an AJ hearing, but subsequently withdrew her request. On January 17, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit any statements or briefs on appeal. ANALYSIS AND FINDINGS Reasonable Accommodation - (Claim 1) Under the Commission's regulations, a federal agency may not discriminate against a qualified individual based on disability, and is required to provide reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p); EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). Complainant stated that she was diagnosed with psychiatric disorders in February 2014. Complainant explained that her condition requires medication as well as ongoing therapy with a psychologist. Complainant further explained that the side effects from her medication causes major mood swings (manic episodes), high blood pressure, forgetfulness, anxiety, drowsiness, upset stomach, headaches, migraines, and fluctuation of her energy levels, among other conditions. Complainant noted that the side effects had a negative impact upon her quality of life and her ability to perform the functions of her position. During the period at issue, Complainant was hired as a Contract Specialist, effective March 7, 2016, through the COPPER Cap (training) Program, which had a two-year probationary period. The record supports that this program provided “formal, informal, and/or on-the-job training.” Specifically, the participants were required to complete rotational on-the-job training assignments during the training period. 2 The record indicates that Complainant’s complaint included an additional claim which the Agency dismissed on procedural ground. Complainant does not dispute this dismissal on appeal. Therefore, we shall not address this matter in our decision below. 2021002192 3 On October 6, 2017, Complainant requested a reasonable accommodation for telework eligibility and a schedule change. Complainant identified that her psychological disorders (anxiety, depression, bi-polar, borderline personality) were exacerbated at the worksite. Complainant explained the following: . . . teleworking from home would minimize the adverse affect [sic] on current conditions by allowing a period of time without in-person social interaction. It would allow continuity of training plan without added stress and distractions. A scheduled change would allow for less leave to be used during treatment. On October 10, 2017, Complainant submitted supporting medical documentation from her physician regarding her request to the Reasonable Accommodation Coordinator (RAC). On October 16, 2017, the RAC responded to Complainant’s request and informed Complainant that there would be a coordination with Occupational Medicine Services (OMS), who would review the medical documentation, offer recommendations, and the RAC would then follow-up with Complainant. However, Complainant did not receive a response. On October 26, 2017, Complainant emailed the RAC for a status update, and the RAC informed Complainant on October 30, 2017, that the request was still pending with OMS. Meanwhile, on November 7, 2017, Complainant submitted a second reasonable accommodation request. However, this time, she requested use of Family & Medical Leave Act (FMLA) leave on an intermittent basis three times per week for one to three hours. The request noted that Complainant is unable to perform job duties when symptoms are exacerbated. The Agency approved Complainant’s reasonable accommodation for FMLA leave on December 6, 2017. Specifically, the Agency granted Complainant up to 480 hours of FMLA leave in a twelve-month period, to be used intermittently for two days or eighteen hours a week for the purposed of exacerbated symptoms of bipolar disorder, generalized anxiety disorder, or ADHD. However, there is no indication in the record that the RAC responded to Complainant’s initial accommodation request to telework, referenced above. Therefore, Complainant’s reasonable accommodation request for telework is the sole accommodation request at issue. 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 EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. 2021002192 4 Here, the record reflects that Complainant was not a qualified individual within the meaning of the Rehabilitation Act. A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. Here, Complainant’s request to telework and need to avoid “in-person social interaction” prevented her from performing the essential functions of her position. The COPPER Cap (training) Program assessed the participants’ ability to advance in the program by evaluating their performance during rotational on-the-job assignments which necessitated that Complainant work onsite. While the record reflects that another COPPER Cap Program participant (P1) was granted telework, the record reflects that telework requests were not typically granted during training; P1’s telework request was temporary; and P1 had good job performance. In contrast, Complainant had requested to telework for an extended period and had already exhibited poor work performance at her position while onsite. The record supports that Complainant was issued a Letter of Separation because of her poor work performance. Consequently, teleworking, in Complainant’s case, would have furthered her inability to perform the essential functions of her position. A reasonable accommodation is designed to enable an employee to perform the essential functions of the position of record. Therefore, the record does not support that the Agency violated the Rehabilitation Act when it did not grant Complainant’s request to telework.3 For the reasons stated above, we conclude that Complainant failed to prove the Agency violated its duty under the Rehabilitation Act. Disparate Treatment - (Claim 2) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 3 Although we find no violation of the Rehabilitation Act because we find that Complainant was not a qualified individual within the meaning of the Rehabilitation Act, we emphasize that the Agency, in this case the RAC, has an on-going obligation to respond, engage, and issue a determination in response to a request for accommodation or provide an interim accommodation while a final determination is pending. 2021002192 5 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record supports that the Agency articulated legitimate non-discriminatory reasons for its actions for removing Complainant from her position. The record reflects that Complainant was issued a Letter of Separation based on poor performance. Specifically, the letter indicated that the separation action was warranted “based on failure to qualify during your probationary period.” The letter noted that Complainant arrived late for her Mock Board Review and was unprepared.4 The letter explained that Complainant was given additional time to upload the required Federal Acquisition Regulation (FAR) slides for her Mock Board Review, but she failed to do so. Additionally, the letter mentioned that Complainant failed to complete assigned tasks and had unsatisfactory attendance throughout the program. Although the Agency had approved Complainant for FMLA leave, the record reflects that the majority of Complainant’s absences were not attributable to her FMLA approved leave related to her disability, but rather Complainant took leave to tend to family issues. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, religion, and disability. Harassment - (Claim 2) To establish a claim of discriminatory 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 class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 4 The record supports the Mock Board Review was an essential aspect of the COPPER Cap program because it allowed the participants to demonstrate their learning, and participants were informed of its importance in advance of the review. 2021002192 6 In other words, Complainant must establish that she 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 basis - in this case, her race, sex, religion, and disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s additional claim of discriminatory harassment as evidenced by the event in claims 2 is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race, sex, religion, and disability. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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, 2021002192 7 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. 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. 2021002192 8 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlene F.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2021002429 Hearing No. 460-2020-00161X Agency No. IRS-20-0003F DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 24, 2021 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Stakeholder Relationship Tax Consultant, GS-0501-9, at the Agency’s Wage and Investment Division in Austin, Texas. On November 6, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (on-the-job injury that restricted her ability to do heavy lifting) and age (65) when, on August 21, 2019, she was not selected for the position of Senior Stakeholder Tax Consultant, advertised under Vacancy Announcement No. 19CW6- WIB0397-0501-11-CL. 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. 2021002429 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. 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. Complainant did not file a brief in support of her appeal. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Here, assuming arguendo that Complainant proved her prima facie case of age and disability discrimination, the Agency articulated legitimate, non-discriminatory reasons for its selection, and Complainant did not provide any evidence as to how this explanation was pretextual. The Selecting Official (who was also Complainant’s supervisor at that time) states she did not choose Complainant for the vacancy because Complainant’s application materials did not substantiate her qualifications. She stated that, as the selecting official, she could only consider the information in the paperwork submitted by the candidates because giving candidates known to her credit for what she knows about them (but that was not included in their paperwork) would have given them an unfair advantage over candidates not known to her. The Selecting Official stated that Complainant only submitted a brief paragraph that did not adequately detail her knowledge, skills, and abilities. The record reflects that Complainant’s resume included a paragraph about her experience in her current position since 2006. 2021002429 3 The Selectee included nearly two pages of detailed bullet points for his experience with the Agency since 2006, but additionally included his experience dating back to 1993, job related training, languages, references, and awards. The record also reflects that Complainant was referred to the Selecting Official for consideration, along with three other candidates (although one candidate later withdrew from consideration). The Selecting Official reviewed each application packet and made her selection based on each candidate’s respective application submission only. The Selecting Official did not conduct any interviews, nor did she rate or rank the candidates’ submissions. The Selecting Official denied that Complainant’s age or medical condition/disability were factors in her decision. Complainant did not provide any opposition to the Agency’s Motion for Summary Judgment, nor did she file an appeal brief. Beyond her bare assertions in the complaint and her affidavit, Complainant has produced no evidence that the Agency's actions were based on discriminatory animus. She claims the Selectee is not qualified, but a review of the record indicates that Complainant's allegations are based only on speculations and conclusory assertions and do not demonstrate that she was plainly significantly more qualified than the Selectee. “Self-serving speculation and conclusions cannot support a finding of pretext.” Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120080810 (Sep. 11, 2009) (citing to Medina-Munoz v. R. J. Reynolds, 896 F.2d 5 (1st Cir. 1990)). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 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). 2021002429 4 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. 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. 2021002429 5 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyson L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002439 Hearing No. 570-2020-00241X Agency No. 2004-0688-2019103633 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 9, 2021 final order concerning his 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. At the time of events giving rise to this complaint, Complainant worked as a Food Service Supervisor, WS-04, at the Agency’s VA Medical Center in Washington, D.C. On May 30, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment on the bases of race (Black American), color (Black), sex (male), disability, and reprisal for prior protected EEO activity when, on May 10, 2019 he was issued a proposed removal for failure to follow instructions. Complainant later amended his complaint to include a discrete claim of disparate treatment for this same incident. 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). 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. 2021002439 2 Complainant timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. 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. Complainant does not provide any brief or argument in support of his appeal. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Complainant focused his opposition to the Notice of Proposed Summary Judgment on his prima facie case and contended that the record was not sufficiently developed because the EEO investigator did not ask questions aimed at proving Complainant’s prima facie case. However, where, as here, the responsible management officials have articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the prima facie showing can be bypassed and the factual inquiry can proceed directly to the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the proffered reasons were a pretext and 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). Beyond his arguments about the prima facie case, Complainant has not pointed with any specificity to facts in dispute or stated what specific information is needed to further develop the record through a hearing. 2021002439 3 Even assuming Complainant had proven his prima facie case, the evidence of record shows that Complainant was issued a Notice of Proposed Removal on May 10, 2019 that outlined four charges: failure to follow instructions (three specifications), negligent workmanship (five specifications), failure to complete assigned training (one specification), and conduct unbecoming a supervisor (two specifications). Although this was later changed to a Reprimand by the Medical Center Director, the Medical Center Director noted there was substantial evidence in support of Charge 2 (Specifications 2 and 5) and Charge 4. Notably, Complainant in his affidavit and his brief opposing summary judgment2 does not dispute most of the specifications. Instead, he argues that the Agency’s actions in issuing the Notice of Proposed Removal were based, at least in part, on his disability. In support of this, Complainant argues that both of the specifications in Charge 4 involved situations during which he was having a panic attack and therefore acted abnormally. We first note that Complainant did not raise the issue of failure to accommodate and therefore that is not before us. However, even assuming Complainant’s statements about his panic attacks as fact and taking it in the light most favorable to Complainant, agencies are not obligated to lower performance standards or otherwise excuse conduct issues. See Johnson v. Dep’t. of the Interior, EEOC Petition No. 03940100 (March 29, 1996) (“employers do not have to excuse the violation of uniformly- applied conduct or job performance standards as a form of reasonable accommodation”). Complainant contends he was treated differently than other employees, but he names only one employee and provides no evidence this employee also had similar performance issues. Therefore, he has not named any similarly situated employees who were treated differently. Complainant has failed to show that the Agency was motivated by discriminatory animus as opposed to Complainant’s conduct and performance issues and he has not shown any nexus between his protected activity and the issuance of the Notice of Proposed Removal. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 2 As already noted, Complainant did not file a brief in support of his appeal. 2021002439 4 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). 2021002439 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harvey D.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021002481 Hearing No. 420-2021-00041X Agency No. DECA-00080-2020 DECISION Complainant timely filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 16, 2021 final order concerning his 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 Meat Cutting Worker, WG-7404-05, at the Agency’s Commissary at Fort Rucker, Alabama. On April 28, 2021, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (White/Caucasian), sex (male), and age (46) when: 1. The Meat Department Manager did not schedule Complainant to work on November 11, 2019, (Veterans Day), January 20, 2020, (Martin Luther King, Jr.’s Birthday), and February 17, 2020, (Presidents’ Day), preventing him from receiving overtime and holiday pay; and, 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. 2021002481 2 2. On a regular basis, he was required to cut meat, a duty not in his position description, while a similarly situated African-American meatcutting worker was not required to cut meat. 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). Complainant timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. The Agency has articulated legitimate, nondiscriminatory reasons for its actions. In regard to Claim 1, the Meat Department Manager testified that it was scheduling demands, the need to meet the store mission, and an attempt to rotate employees that led to his holiday scheduling decisions. In regarding to Claim 2, the Meat Department Manager stated that the other meatcutting employee did not have the level of experience that Complainant had, and the other employee was not employed long enough to be properly training in meat cutting. In both claims, the Meat Department Manager denied that Complainant’s age, sex, or race were factors in these events. 2021002481 3 He instead pointed to the previously noted factors, as well as the differing job positions or experience of the employees, the difference between Complainant’s part-time (32 hours/week) schedule and the other employees’ full-time (40 hours/week) schedules, and the fact that Complainant requested some holidays off. Beyond his bare assertions, Complainant has produced no evidence that the Agency's actions were based on discriminatory animus. He claims the Meat Department Manager’s testimony is “untruthful” and “deceitful”. However, a review of the record indicates that complainant's allegations are based only on speculations and conclusory assertions. “Self-serving speculation and conclusions cannot support a finding of pretext.” Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120080810 (Sep. 11, 2009) (citing to Medina-Munoz v. R. J. Reynolds, 896 F.2d 5 (1st Cir. 1990)). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 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 2021002481 4 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. 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. 2021002481 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Abe K.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Request Nos. 2021002634 & 2021002655 Appeal Nos. 2021001017 & 2020001018 Hearing No. 480-2020-00421X Agency Nos. HS-ICE-02780-2015 & HS-ICE-02781-2015 DECISION ON REQUESTS FOR RECONSIDERATION Complainant filed two requests that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal Nos. 2021001017 & 2020001018 (March 16, 2021).2 EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). Complainant’s request for reconsideration is DENIED. 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 The Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Here, it appears that Complainant’s requests for reconsideration are duplicates. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. 2021002634 & 2021002655 2 At the time of events giving rise to this complaint, Complainant worked as an Enforcement and Removal Assistant at the Agency’s Enforcement Removal Operations in El Paso, Texas. On December 16, 2014, the Agency issued Complainant a decision to remove him from federal service for Inappropriate and/or Disruptive Behavior; Making False and Malicious Statements about Managers, the Agency Inspector General, and/or Agency Attorneys; Misconduct Prejudicial to the Image of the Agency; and Lack of Candor. The Agency informed Complainant that his removal was effective January 11, 2015. Complaint File (CF) at 11-20. On February 5, 2015, Complainant contacted the Office of Diversity and Civil Rights and alleged discrimination for his termination. CF at 3-4. The Agency issued Complainant’s Notice of Right to File a Formal Complaint (NRTF) on May 7, 2015. CF at 22-4. On March 9, 2020, the Agency was informed that Complainant filed a request for a hearing before an EEOC Administrative Judge, but he subsequently withdrew his request. On May 20, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and disability, and in reprisal for prior protected EEO activity when, on December 16, 2014, the Agency notified him of his termination. CF at 31. Subsequently, on November 13, 2020, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to Complainant’s untimely contact with an EEO counselor and the untimely filing of the formal complaint. CF at 40-3. Complainant filed two appeals with the Commission on November 26, 2020. On March 16, 2021, our previous decision consolidated the appeals and affirmed the Agency’s dismissal, finding that Complainant filed his formal complaint five years late, well beyond the limitation period. Specifically, Complainant was emailed his NRTF on May 7, 2015, and he filed his formal complaint on May 20, 2020. The appellate decision noted that, while his initial EEO contact was timely, Complainant did not argue that he did not receive the NRTF, nor provide sufficient justification for extending or tolling the time limit. Abe K. v. Dep’t of Homeland Sec., EEOC Appeal Nos. 2021001017 & 2020001018 (Mar. 16, 2021). Complainant filed the instant requests for reconsideration, and he provided copies of documents related to a civil suit filed against EEOC officials in the U.S. District Court for the Western District of Texas.3 The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). A request for reconsideration is not the time to raise new evidence or new arguments. 3 The court’s records show that Complainant withdrew his civil action. 2021002634 & 2021002655 3 Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. After reviewing the previous decision and the entire records, the Commission finds that the requests fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the requests. The decision in EEOC Appeal Nos. 2021001017 & 2020001018 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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, Director Office of Federal Operations March 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Salvatore B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002686 Hearing No. 480-2019-00866X Agency No. 4F-900-0007-19 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 2, 2021 final order concerning an 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 was employed by the Agency as a full-time Letter Carrier at the Santa Monica Carrier Annex in California. On February 22, 2019, Complainant filed an EEO complaint alleging the Agency treated him disparately and subjected him to hostile work environment harassment on the bases of race (African American) and age (54) when: 1. on August 16, 2018, management issued Complainant a Letter of Warning for Failure to Follow Instructions; 2. on September 6, 2018, it issued a 7-day, No Time Served Suspension for Failure to Follow Instructions/Maintain a Regular Work Schedule; 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. 2021002686 2 3. on September 13, 2018, it issued a 14-day No Time Served Suspension for Failure to Follow Instructions/Unsatisfactory Work Performance dated September 6, 2018, which was subsequently rescinded; 4. since about September 17, 2018 and continuing, management humiliated, berated, threatened, accosted, chastised, disrespected, and yelled at Complainant; 5. on October 4, 2018, management issued a 14-day No Time Served Suspension; 6. on October 9, 2018, management issued a 14-day No Time Served Suspension; and 7. on November 17, 2018, management issued a 14-day No Time Served Suspension. 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). Complainant timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing, to which both parties responded. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 2021002686 3 The AJ found although management issued Complainant numerous disciplinary actions, some of which were rescinded under the negotiated grievance procedure, Complainant failed to show that the Agency’s actions were motivated by discriminatory factors. The AJ concluded that the Agency’s witnesses articulated legitimate, nondiscriminatory reasons for the disputed actions and Complainant failed to prove the proffered explanations were a pretext designed to mask discrimination. Complainant also argues that management, specifically the Officer-in-Charge (“OIC”) (Hispanic, born 1991) “constantly berated, belittled, insulted, and provoked” him because of Complainant’s race and age. To support his argument, he points to the affidavits of multiple coworkers who describe management’s harsh behavior toward Complainant. These coworkers overheard OIC Mendoza regularly comment on how Complainant was too slow, did not complete his work assignments, performed tasks incorrectly, talked to his coworkers excessively, unloaded his vehicle inefficiently, and played “games” by moving his vehicle from one spot to another. Assuming the statements of Complainant and his coworkers are true, the AJ concluded that antagonistic behavior in and of itself is insufficient to establish bias based on Complainant’s protected statuses. The image which emerges from considering the totality of the record is that there were conflicts and tensions with OIC’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that OIC was motivated by discriminatory animus. Complainant’s claim of discriminatory harassment is precluded based on the findings that Complainant failed to establish 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). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 2021002686 4 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). 2021002686 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ernie S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021002692 Hearing No. 450-2017-00335X Agency No. HS-TSA-00133-2017 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 22, 2021 final order concerning an 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 was employed by the Agency as a Training Instructor, SV-1712-I, in the Canine Training Center at Joint Base San Antonio in Texas. On December 21, 2016, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of national origin (Hispanic), sex (male), and age (47) when, on October 10, 2016, the Agency failed to select him for a Supervisory Training Instructor position, Announcement # HQ-OTD-TA70-166903-I. 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 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. 2021002692 2 Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, to which Complainant responded. Following an Order to Supplement the Record, the assigned AJ 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. The AJ found, contrary to Complainant’s assertions, the record shows management utilized consistent guidelines to determine whom of fourteen candidates to forward for an interview. Complainant was not one of the six chosen for interview and ultimately was not selected for the position. The AJ found, however, that Complainant failed to show that the Agency’s choices for interview or its choice for final job selection were based on discriminatory motives. The AJ noted that managers selected among the qualified candidates who they believed best to meet the needs of the Agency to move forward in the selection process. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 2021002692 3 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. 2021002692 4 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Illa S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002699 Hearing Nos. 480201900944X, 480202000436X Agency Nos. 4F926006119 & 4F926016719 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 4, 2021 Final Order concerning two equal employment opportunity (“EEO”) complaints 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. BACKGROUND At the time of events giving rise to both complaints, Complainant was employed by the Agency as a Postmaster, EAS-22, for the West Covina Post Office in West Covina, California. 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. 2021002699 2 EEOC Hearing No. 480201900944X (“Complaint 1”) On April 11, 2019, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of national origin (Hispanic/Latina), sex (female), age (51), and reprisal (prior protected EEO activity) when: 1. On November 14, 2018, she was issued a Proposed Letter of Warning in Lieu of 14-day Suspension, which was effectuated in a Letter of Decision dated April 29, 2019; and, 2. On January 22, 2019, she was issued a Notice of Proposed Removal, which was mitigated to a reduction in grade via the Letter of Decision dated April 9, 2019. EEOC Hearing No. 480202000436X (“Complaint 2”) On October 5, 2019, Complainant filed a formal EEO complaint alleging that she was subjected to discrimination by the Agency on the bases of sex and reprisal (protected EEO activity related to Complaint 1) when: 3. On August 19, 2019, she was placed on paid Administrative Leave pending an investigation into her conduct. The Agency investigated the complaints, then provided Complainant with a copy of the report of investigation (“ROI”) for each and notice of her right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant requested hearings, and her complaints were assigned to the same AJ. The Agency filed Motions for Summary Judgment, and, over Complainant’s objection, the AJ granted both motions in a decision without a hearing. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged in both of her complaints. The instant appeal followed. ANALYSIS AND FINDINGS 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 2021002699 3 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 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 for either of her complaints. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Complaint 1 The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for the disciplinary actions in Claims 1 and 2, mainly stemming from numerous allegations, including a May 16, 2018 congressional complaint, that Complainant’s conduct created a hostile work environment for her subordinates. The Agency’s legitimate nondiscriminatory reasons also included performance matters, such as Complainant’s failure to immediately report that an arrow key went missing, and a delayed response to an altercation between two of her subordinates. Complainant disputes that she caused a hostile work environment, reasoning that her subordinates “perceived” her leadership as causing a hostile work environment, and they sought to have her removed, because they did not like that she enforced the Agency’s productivity standards. She recounts that West Cordova Post Office was significantly underperforming when she became its postmaster in 2014. At the time, she had been working for the Agency for 24 years, including as a successful postmaster at another facility for the past 6 years. Complainant testifies that a Manager of Post Office Operations (“MPOO”) for the Santa Ana District personally tasked her with increasing carrier productivity. Within two years, under Complainant’s leadership, the West Covina Post Office became one of the district’s top performing facilities. This accomplishment entailed some terminations and many more employee write ups than that of the prior postmaster. Complainant’s account is insufficient to establish a question of material fact, as it is undisputed that she was the subject of multiple hostile work environment allegations, the stated reason for Claims 1 and 2. In response to the performance issues, Complainant attempts to justify her actions, indicating a disagreement with the Agency’s business judgment, but not creating a question of material fact that would warrant reversing summary judgment. For instance, while she offers documentary support that the missing key was the responsibility of the supervisors, Complainant does not dispute that upon learning that the key was missing, she did not immediately report it to Management. She explains that she was aware of the policy, but, due to the congressional complaint, she contacted a union official instead of Management in an attempt to resolve the matter informally. 2021002699 4 Complainant’s argument that the Agency failed to consider her years working for the Agency and her record is not supported, as are her assertions that she was treated less favorably than employees outside her protected classes. The record supports the AJ’s thorough explanation for why the individuals Complainant identified who were outside her protected classes, and were treated more favorably, were not similarly situated comparators. Even if Complainant was subjected to harsher disciplinary actions as a result of the congressional complaint, as the AJ aptly noted, Complainant does not identify discriminatory motivation based on a protected category or for protected activity. Complaint 2 The Agency’s legitimate nondiscriminatory reason for Claim 3, placing Complainant on paid administrative leave, was to ensure that she did not interfere with a second investigation of whether she created a hostile work environment for her subordinates. Although it overlapped with a matter for which Complainant was previously investigated and disciplined, the second investigation was triggered when Management received additional allegations in a petition signed by 53 (over half) of West Corvina Post Office employees asking that Complainant not be returned to her position as postmaster. The decision to place Complainant on administrative leave in this context was well within the Agency’s business discretion, and consistent with its policies for disciplining or investigating management-level employees. See Management Instruction EL-380-2018-2 (Oct. 11, 2018); ELM Issue 46, 651.76 (Mar. 2019). Moreover, the Agency’s articulated concerns that Complainant’s presence may prevent employees from speaking candidly to the investigators is supported by multiple employee statements that they feared retaliation from Complainant. Even employees who denied experiencing poor treatment by Complainant voiced fear of “getting on [Complainant’s] bad side.” As the AJ already thoroughly explained, Complainant’s arguments that the Agency’s proffered reason is pretext, are insufficient to overcome summary judgment. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021002699 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. 2021002699 6 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Franklin P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002792 Hearing No. 471-2019-00035X Agency No. 4J-481-0149-18 DECISION On April 8, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 3, 2021 final order concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the Agency’s Goodrich Post Office in Goodrich, Michigan. On August 28, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability and age when, on May 23, 2018, Complainant became aware that he had been removed from his Postmaster position at the Goodrich Post Office per a settlement agreement and would not be permitted to return. 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. 2021002792 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. 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. ANALYSIS AND FINDINGS 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021002792 3 Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. 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 its actions, 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). Here, the AJ found that the Agency articulated a legitimate nondiscriminatory reason for its action. The Agency articulated that it entered into a settlement agreement with the union to resolve a sexual harassment grievance and prevent further incidents. The Agency and the Union agreed that Complainant would not be permitted to return to the Goodrich Post Office or supervise employees after his subordinates filed a sexual harassment grievance against him. The AJ noted that Complainant identified the Post Office Operations Manager (POOM) as the discriminating official who dictated the terms of the settlement agreement. Complainant also argued the POOM had discriminatory animus because he had allegedly made a comment eleven years earlier that Complainant was not deserving of his Postmaster position. After reviewing the record, the AJ found that Complainant had not established pretext because the record showed that it was the Acting Operations Manager (AOM) who dictated the terms of the agreement, not the POOM. The AJ also found that the alleged comment was vague and noted that it was the POOM who promoted Complainant into his Postmaster position at Goodrich. Although it is not dispositive, this fact belies Complainant’s assertion of discrimination. Lastly, the AJ determined that there was no evidence in the record which suggested that AOM’s actions were based on discriminatory animus. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021002792 4 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). 2021002792 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatrice B.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002918 Hearing No. 420201900412X Agency No. ATL180891SSA DISMISSAL OF APPEAL On April 21, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency’s December 19, 2019 Final Order concerning her EEO complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. Specifically, the Final Order adopted the AJ’s December 6, 2019 Summary Judgment Decision finding that Complainant failed to establish discrimination as alleged. Appeals to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency's final action. 29 C.F.R. § 1614.402(a). EEOC regulations provide that if Complainant is represented by an attorney of record, the 30-day time period shall be calculated from the receipt of the required document by the attorney. In all other instances, the time within which to appeal shall be calculated from the receipt of the required document by Complainant. 29 C.F.R. § 1614.402(b). Complainant is responsible for proceeding with the complaint at all times, whether or not they designated a representative. 29 C.F.R. §1614.605(e). After Complainant filed the instant appeal, the Agency submitted a response asserting that the appeal was untimely. 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. 2021002918 2 As evidence, the Agency provides a December 19, 2019 email from Agency Counsel to Complainant’s email address of record, referencing its Final Order and the AJ’s Decision as attachments. While the Agency’s Final Order properly included instructions on Complainant’s appeal rights, including the 30-day time limit to file, the email alone is does not meet the Agency’s evidentiary burden because the body of the proffered email does not reference Complainant’s appeal rights or the 30-day time limit, so establishing actual receipt in this case would also require confirmation that Complainant received and was able to open the attachments. However, we deem December 19, 2019, as the date Complainant received the Agency’s final order by opening the attached documents to the Agency’s email. Complainant has not submitted a response contesting the Agency’s assertion that she received its Final Order and appeal rights on December 19, 2019, nor has she identified an alternative date on which she received these documents. Moreover, Complainant has not acknowledged or explained why she did not file her appeal for over a year, i.e., any persuasive arguments or documentation indicating that she was prevented from filing an appeal. See Mario K. v. EEOC, EEOC Appeal No. 2021001671 (Aug. 12, 2021) (adopting the agency’s proffered date complainant received its final order at the complainant’s email address of record when complainant did not contest the date or provide an explanation for the delay in filing). Therefore, Complainant’s appeal, filed over 30 days after the Agency issued its Final Decision, is untimely, and will not be accepted by the Commission. CONCLUSION Accordingly, Complainant's April 21, 2021 appeal is hereby DISMISSED. See 29 C.F.R. § 1614.403(c). 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). 2021002918 3 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. 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. 2021002918 4 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarvis M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002934 Hearing No. 470-2020-00124X Agency No. 4C-400-0079-19 DECISION On April 14, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 12, 2021 final order concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency’s Post Office in Richmond, Kentucky. On December 3, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African American), disability, age, and reprisal when: 1. On May 25, 2019 his postmaster threatened to fire him. 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. 2021002934 2 2. Complainant was denied a reasonable accommodation. The Agency dismissed claim 1 on the ground that it was untimely. The Agency accepted claim 2 and conducted an investigation into the claim. After its investigation into claim 2, 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. 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. ANALYSIS AND FINDINGS 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 2021002934 3 Request to Reinstate Claim 1 In his formal complaint, Complainant alleged that he was discriminated against when, on May 25, 2019, his postmaster threatened to fire him. His initial contact with an EEO counselor concerning this matter was on September 9, 2019. The Agency determined that Complainant failed to bring the claim to the attention of an EEO counselor within 45-days of the matter alleged to be discriminatory and dismissed the claim as untimely. On September 18, 2020 Complainant filed a motion to reinstate the claim. The AJ subsequently denied Complainant’s motion. On December 7, 2020, Complainant again made an argument to reinstate the claim. The AJ reaffirmed the dismissal of the claim on the ground that Complainant had not raised the issue within the 45-day time limit. On appeal, Complainant argues that the claim should be reinstated under the “continuing violation” doctrine. Here, however, to the extent Complainant is alleging he was subjected to a discriminatory hostile work environment,2 he has not alleged that one or more acts related to Claim 1 occurred within 45 days of his September 9, 2019 initial contact with the EEO counselor. Therefore, we find the dismissal of the alleged threatened termination was proper. Claim 2: Reasonable Accommodation To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability as defined by 29 C.F.R. § 1630.2(g), (2) he is a “qualified individual with a disability” pursuant to 29 C.F.R. § 1630.2(m), and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) (“Enforcement Guidance”). The AJ determined that although Complainant was diagnosed with anxiety, he failed to meet his burden of proof to establish that he was a “qualified individual with a disability.” In so doing, the AJ noted Complainant was not cleared to work in any capacity due to his medical condition and could not establish that he could perform the essential functions of his job with or without reasonable accommodation. A “qualified individual with a disability” is an individual who satisfies the requisite skill, experience, education and other job-related requirements of the employment position and who with, or without reasonable accommodation can perform the essential functions of such position. 29 C.F.R. 1630.2(m). A review of the record shows that Complainant was off work from May 2019 through his retirement in September 2020 for medical reasons. During that period, Complainant submitted doctor’s notes to his manager every month, placing him off work. The notes describe that Complainant was diagnosed with anxiety disorder, major depressive disorder and high blood pressure. 2 The Supreme Court has held that a complainant alleging a discriminatory hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). 2021002934 4 However, the notes do not describe how his condition affected his ability to perform his duties as a City Letter Carrier. Nor do they describe how Complainant's duties could be modified to adequately enable him to perform his work. Like the AJ, we find that there was insufficient evidence to establish that, during the period at issue, Complainant could perform the essential functions of his position with or without reasonable accommodation. Moreover, we note that on appeal, Complainant argues that the Agency made no effort to engage in the interactive process for over five months. However, a review of the record shows the District Reasonable Accommodation Committee (DRAC) requested that Complainant provide specific documentation of his condition and limitation necessary to process his accommodation request. Complainant did not provide the necessary documentation. Therefore, we find that his failure to provide the necessary documentation caused the failure to receive consideration of a possible accommodation. CONCLUSION 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 order, because the AJ’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 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 2021002934 5 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. 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. 2021002934 6 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Archie G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002943 Hearing No. 530-2019-00081X Agency No. 4C-150-0010-18 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 24, 2021 final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as Rural Carrier Associate at the Agency’s Post Office facility in Port Matilda, Pennsylvania. On February 1, 2018, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of national origin (Spanish and Portuguese ancestry) when he was subjected to harassment by the Postmaster when: 1. In 2016, the Postmaster questioned Complainant’s national origin; 2. From November 26th through December 9th, 2016 Complainant was not properly paid, and the Postmaster delayed correcting his pay until April 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. 2021002943 2 3. On February 7th, March 28th, and March 30th of 2017, Complainant received threatening letters and the Postmaster did not properly investigate the matter, accused him of sending the letters to himself, and did not grant him the time off he requested; 4. In May 2017, the Postmaster spread rumors that Complainant wrote the threatening letters to himself; 5. On September 9th, 2017, the Postmaster yelled at Complainant in front of his co- worker; 6. On September 25th, 2017, the Postmaster yelled at Complainant, threatened him, and falsely accused him; and 7. On September 26th, 2017, Complainant was given a pre-disciplinary interview and falsely accused by the Postmaster. 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). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. While Complainant argues at length on appeal that the AJ’s credibility determination of the various witnesses was unsupported by the evidence, we find that, even assuming arguendo that everything Complainant claims occurred as alleged, Complainant has not shown that the actions alleged were sufficiently severe or pervasive enough to constitute harassment under the law. Nor has Complainant shown, with the exception of the isolated incident in claim 1, that the Agency’s alleged actions either involved or were based on his protected basis. 2021002943 3 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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). 2021002943 4 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adena D.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021003040 Hearing No. 451-2014-00001X Agency No. 7A0J13001 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s final order2 concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Contract Specialist Intern at Joint Base San Antonio in Texas. She was hired under the Schedule A hiring authority and was within her one-year probationary period. On December 10, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of disability (lower back injury, intervertebral disc disease, and degenerative arthritis) and reprisal for prior EEO activity3 (instant complaint) 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. 2 On September 7, 2020, the Agency “ratified” the July 29, 2020 decision of the Administrative Judge, stating that it neglected to issue a final decision within 40 calendar days as is required by 29 C.F.R. § 1614.110(a). 3 The basis of reprisal applies to incidents (3) and (4) only. 2021003040 2 1. between August 13, 2012 and October 24, 2012, management failed to grant Complainant reasonable accommodation or engage in dialogue regarding accommodation of an ergonomic chair; 2. August 31, 2012 to October 24, 2012, management denied Complainant telework pending an ergonomic chair; 3. on November 6, 2012, management gave Complainant an inaccurate, less than favorable performance review and provided false information in the review; 4. on December 6, 2012, Complainant’s supervisor made derogatory comments to her; and 5. management failed to grant Complainant reasonable accommodation (three weeks of leave without pay), resulting in Complainant’s constructive discharge when she had to resign effective February 22, 2013. 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). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency adopted 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2021003040 3 The AJ found that Complainant failed to show excessive delay in the Agency providing reasonable accommodation of an ergonomic chair or that the delay was related to discriminatory motives. The AJ noted that Complainant requested an ergonomic chair and provided medical support for her request about August 27, 2012. The AJ added that there were communications between management, Complainant, and third parties regarding provision of a medically- recommended chair and the Agency provided Complainant a new chair on October 25, 2012. The AJ concluded that Complainant failed to show medical necessity to telework during the period she was without the requested chair or to take three weeks of leave without pay. Regarding her 90-day appraisal, the AJ found that the review served to provide feedback to Complainant on her performance thus far and Complainant failed to show concrete impact on her employment. Further, the AJ found that comments by management were “innocuous” and unrelated to discriminatory motives. Lastly, the AJ found that Complainant failed to show that the working conditions were so intolerable so as to result in her resignation. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 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 2021003040 4 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. 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. 2021003040 5 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003046 Hearing No. 480-2018-00508X Agency No. 4F-920-0189-17 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 26, 2021 final order concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Sales, Service, Distribution Associate at its Arlington Station in Riverside, California. On January 4, 2018, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of disability (shoulder and neck injury) when: 1. as of September 14, 2017, management required Complainant to perform other duties while she was supposed to be on a ten-minute per hour rest period; 2. as of September 14, 2017, management lied about Complainant to coworkers, pretended to forget her medical restrictions, and belittled Complainant in front of others; and 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. 2021003046 2 3. on unspecified dates, management disclosed Complainant’s confidential medical restrictions to coworkers. 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). Complainant timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing, to which the Agency responded. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. In sum, the AJ concluded that Complainant provided no evidence to support a finding that any of her claims actually occurred. In other words, there was no evidence that she was ever required to work outside her medical restrictions or on her breaks, or that management violated the Rehabilitation Act by disclosing confidential medical information to her coworkers. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 2021003046 3 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. 2021003046 4 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jesse R.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Highway Administration), Agency. Appeal No. 2021003184 Hearing No. 570-2020-00251X Agency No. 2018-28199-FHWA-02 DECISION On May 7, 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 26, 2021, final action concerning his 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 action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-12, for the Agency’s Federal Highway Administration, Office of Chief Counsel at its Headquarters in Washington, D.C. On December 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (sexual orientation) and disability (physical) 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. 2021003184 2 1. On May 11 and 16, 2018, Complainant’s supervisor, the Assistant Chief Counsel (ACC) held meetings to discuss rebalancing work and denied work-related suggestions from Complainant; 2. On January 18, 2018 and July 26, 2018, the ACC remarked about Complainant’s personal travel and made a comment about “big life events” that led to a desire to “catch up on lost time;” 3. On July 25, 2018, Complainant’s concerns to the ACC about stress at the workplace did not receive adequate attention and the ACC compared Complainant’s professional issues to those of her kids when they were sick; 4. Beginning on August 6, 2018, the ACC required Complainant to maintain a “time-tracker” to determine how his time was divided between program areas and divisions; 5. On September 26, 2018, Complainant was denied a career ladder promotion from the position of Program Analyst (GS-12) to the position of Program Analyst (GS-13) grade level and his employment status was not converted from conditional to permanent; 6. On October 17, 2018 and October 30, 2018, the ACC held “substantive feedback” and “performance discussion” meetings with Complainant.2 Complainant began his employment with the Agency in August 2015. See Report of Investigation (ROI) at 691. According to Complainant, in his cover letter he mentioned his cancer diagnosis and further explained in his interview that, due to his cancer, he was unable to speak loudly. See ROI at 170-71. Complainant also stated that he has a gastric issue for which he eventually requested, and was granted, a reasonable accommodation in 2019.3 See ROI at 183, 626-32. Complainant also asserted that the Agency became aware of his sexual orientation from his resume, which cited his work for Human Rights Campaign and his accomplishment of being the Sexual Orientation and the Law Moot Court Competition champion. See ROI at 170- 71. 2 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 3 Complainant’s reasonable accommodation is not at issue in this case. 2021003184 3 Regarding claim 1, Complainant explained that although he did not attend the May 11, 2016 meeting, he was at the May 16, 2016 meeting and expressed his desire for a fair division of his workload. Specifically, he sought more work in the Legislation and Regulations Division as reflected in his performance plans. See ROI at 171. His request for a fair workload was denied, and Complainant believed that the meetings were a precursor to the harassment he later endured from the ACC and the Freedom of Information Act (FOIA) Team Lead (TL), which included tracking his time, making false accusations, and maligning his character. See ROI at 171-74. Complainant stated that on January 18, 2018, the ACC mentioned his personal travel on the weekends in connection with his performance evaluations, suggesting that his weekend activities could affect his performance (claim 2). See ROI at 176-77. Complainant asserted that he felt this was an offensive reference because “‘partying’ is commonly attributed to a ‘gay lifestyle.’” See ROI at 177. As for claim 3, Complainant asserted that the ACC did not listen to his explanation about the cause of an error that had been incorrectly attributed to him, and stated that she “deals with this sort of thing all the time with [her] kids when they are out sick from school and have work to make up.” See ROI at 180. Complainant felt the remark was insulting and offensive because he is not a child and his cancer should not be diminished to a childhood illness. See id. Complainant stated that, beginning on August 6, 2018, the ACC required him to maintain a “time-tracker,” in order to determine how his time was being used and what work was and was not being done (claim 4). See ROI at 183. Complainant felt “singled out” and “overwhelmed” because the extra work was burdensome. See ROI at 185. He also asserted that it was unfair because his duties and his gastric issues, which he had not shared with the ACC because it was personal and embarrassing, often required him to be away from his desk. See ROI at 183-84. With respect to claim 5, Complainant stated that he became eligible for a promotion to the GS-13 grade level in September 2018 and believed he should have been promoted due to his outstanding performance. See ROI at 187. In claim 6, the ACC held meetings with Complainant to discuss her lack of confidence in his ability to produce work at the next grade level. However, contends Complainant, the ACC did not point out any specific errors or substantive issues. See ROI at 188-89. Additionally, Complainant took issue with the ACC’s questioning of his performance, because it was not raised in his annual performance review. See ROI at 189. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 17, 2021, motion for a decision without a hearing. On February 26, 2021, the AJ issued a decision without a hearing. 2021003184 4 The AJ found that Complainant had not established that any additional discovery would lead to relevant evidence nor did he present any evidence of discriminatory intent on the part of the Agency. Therefore, the AJ concluded that Complainant had not established that he was subjected to either disparate treatment or a hostile work environment as alleged. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not make any arguments on appeal. The Agency filed a response, arguing that the AJ properly issued summary judgment in its favor and the AJ’s decision should be affirmed. ANALYSIS AND FINDINGS 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). Summary Judgment We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2021003184 5 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the instant record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not made any arguments to indicate that issues of material fact are in dispute. Therefore, we find that the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment A claim of disparate treatment 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 must first establish a prima facie 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. See 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. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). With respect to claims 2 and 3, the ACC questioning Complainant about his personal travel and comparing his issues to her children, we find that Complainant did not establish a prima facie case. See Cheney v. Dep’t of the Air Force, EEOC Appeal No. 0120060647 (Sep. 7, 2007). 2021003184 6 Complainant did not allege that he suffered any adverse employment action as a result of these remarks and his subjective assertion, that he found the comments to be offensive, does not establish an adverse employment action. For each of the remaining claims, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As for claim 1, regarding Complainant’s workload, the ACC stated that, while she did not specifically recall the meetings in question, she did have many conversations with her division staff regarding the heavy workload the office was experiencing due to position vacancies and the ability of her employees to manage their assignments. See ROI at 492. The FOIA TL further explained that Complainant’s position description included FOIA work and it was her duty, as the team lead, to delegate some FOIA responsibilities to Complainant. See ROI at 877. Regarding claim 4, the requirement to maintain a “time-tracker,” the ACC explained that at the time Complainant’s workload was heavy and varied, requiring him to work in different areas as needed, which meant she did not supervised Complainant’s work assignments directly. See ROI at 517-18. Therefore, ACC did not know the specifics of his projects. See Id. Because there were two Legal Assistant vacancies, noted ACC, Complainant was also required to perform more administrative duties. See ROI at 518. She asserted that the time-tracker was intended to help Complainant, and those who assigned Complainant work, to adjust and prioritize his workload to ensure that he spent roughly the same percentage of time on each practice area as reflected in his performance plan. See ROI at 518-19. With respect to Claim 5, the failure to promote Complainant to the GS-13 grade level and make his position permanent, the ACC explained that such decisions are usually made by supervisors. See ROI at 522. According to ACC, Complainant’s work at the GS-12 level contained too many errors. See ROI at 523. Moreover, Complainant displayed a lack of attention to detail and an inability to multi-task and stay organized. Id. The FOIA TL, who was responsible for assigning some of Complainant’s work, also asserted that Complainant failed to perform his work in a timely and professional manner. See ROI at 878. The ACC explained that she did not approve making Complainant’s position permanent due to the issues with Complainant’s performance and concerns with his attendance. See ROI at 529-30. In particular, she noted that, on more than one occasion, Complainant had been absent without providing advance notice and had exhibited a pattern of tardiness. See ROI at 500-502. On July 6 and 25, 2018, stated the ACC, Complainant arrived to work several hours late, missing an important FOIA meeting as well as his own performance appraisal meeting. See id. She further explained that there were multiple instances of Complainant not being in the office when he should have been, taking extended lunch breaks, and leaving prior to the end of his scheduled time. See ROI at 531. According to the ACC, Complainant submitted erroneous timecard data so that he was still paid for the time he was not in the office. See ROI at 531. When asked about these issues, ACC stated Complainant was not forthcoming and “seemed to feel entitled to make his own flexibilities without [her] approval, input or knowledge.” See id. 2021003184 7 As for the meetings about Complainant’s performance, claim 6, the ACC stated they were held at Complainant’s request, in order to discuss his promotion. See ROI at 526. At the meetings, ACC asserted that she informed Complainant that the decision-making processes for promotion and for performance required different time frames and analysis. See ROI at 526. Moreover, ACC said she clarified that Complainant’s work did not reflect the level of analysis and substantive expertise that she would like to see for the GS-13 level. See ROI at 526-28. She gave him a list of her specific concerns and what Complainant could do in the future to qualify for the promotion. See id. We find that Complainant has failed to establish that any of the Agency’s legitimate, nondiscriminatory reasons were a pretext for discrimination. Complainant did not provide any evidence to support his assertions of pretext, instead simply arguing that the ACC’s comments, which he took to be references to his disability or his sexual orientation, are proof of discriminatory intent. It is not clear that the comments about Complainant’s weekend activities or the reference to the ACC’s children have any connection to either of Complainant’s protected classes. In addition, the record indicates that they were said in the context of legitimate inquiries into Complainant’s performance and work schedule. We further emphasize that Complainant does not deny the instances of tardiness or the frequent absences from his desk. To the extent Complainant appears to argue that his attendance issues were due to his gastric condition, we note that Complainant did not inform the Agency of his condition at the time nor did he explain how his tardiness was connected to his condition. Moreover, with regard to denying Complainant’s promotion and making his position permanent, the Commission has long held that an Agency has broad discretion to carry out personnel decisions and should not be second- guessed absent evidence of unlawful motivation. See Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). There is no evidence in the record to support Complainant’s assertion that the Agency’s actions were due to any of his protected bases. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We therefore affirm the Agency’s final action finding that Complainant did not establish that he was subjected to disparate treatment. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of 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 the statutorily protected class; (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 employer. See Henson v. City of Dundee, 682 2021003184 8 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Here, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, the record indicates that the incidents Complainant characterizes as evidence of harassment involve routine work assignments, instructions, and admonishments, which are neither severe nor pervasive enough to alter a term or condition of employment. See Eckenrode v. U.S. Postal Serv., EEOC Appeal No. 0120113930 (Nov. 6, 2012); Quinones v. Dep’t. of Homeland Sec., EEOC Appeal No. 01A53109 (Mar. 31, 2006). 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 action finding that Complainant did not establish that he was subjected to discrimination or a hostile work environment as alleged. 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 2021003184 9 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. 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. 2021003184 10 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Noah S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021003215 Hearing No. 540-2018-00209X Agency No. HS-CBP-01482-2017 DECISION On May 12, 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 May 24, 2021, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mission Support Specialist, GS-9, at the Agency’s Customs and Border Protection, Office of Field Operations, Tucson Field Office in Nogales, Arizona. On July 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), sex (male), color (Brown), age (51), and in reprisal for prior protected EEO activity 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. 2021003215 2 1. On April 26, 2017, he learned that he was not selected for the position of Mission Support Specialist, GS-11, advertised under Job Opportunity Announcement (JOA) Number MHCMP-1870628-SJS; 2. On September 5, 2017, he learned he was not selected for the position of Supervisory Mission Support Specialist, GS-12, advertised under JOA Number OFO-MB-10014487-TJC. Complainant also sought to amend his complaint to include the following claims: 3. On May 11, 2009, Complainant was coerced into signing a Last Chance Agreement (LCA); 4. On September 6, 2011, Complainant learned he was initially selected for a GS-11 salary promotion, advertised under JOA Number MHCBPMP- 453474-OC, for a two-week period in 2011, then removed from the position; 5. On or about November 19, 2015, Complainant learned he was not selected for the position of Mission Support Specialist, GS-11, advertised under JOA Number MHCMP-1547653-KDL; 6. On or about August 5, 2016, Complainant learned he was not selected for the position of Supervisory Mission Support Specialist, GS-12, advertised under JOA Number MHCMP-1744450-KDL; 7. On or about September 8, 2016, Complainant learned he was not selected for the position of Supervisory Mission Support Specialist, GS-12, advertised under JOA Number: MHCBP-1765184-LAM. See Report of Investigation (ROI) at 163. The Agency dismissed Claims 3 through 7 pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that the most recent allegedly discriminatory act occurred in September 2016, and Complainant waited well beyond the forty-five day time limit to contact an EEO Counselor on May 2, 2017. Additionally, the Agency found that the claims were not addressed in counseling, but raised for the first time in efforts to amend the complaint. See ROI at 164-66. Claims 1 and 2 were accepted for investigation. See id. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 15, 2019 motion for a decision without a hearing and issued a decision without a hearing on April 22, 2021. The AJ found that for claim 1, Complainant did not establish a prima facie case of discrimination based on race, color, sex, or reprisal since the Selectee (S1) is also a Hispanic male and because Complainant’s prior EEO activity occurred sometime in 2015, well over a year prior to the non- selection. Further, the AJ determined that the Agency articulated a legitimate, nondiscriminatory reason for the April 2017 non-selection and that Complainant did not establish that the Agency’s reason was pretext. 2021003215 3 Specifically, the AJ noted Complainant’s contention that the non-selection was due to the LCA he had signed, which addressed allegations of criminal misconduct by Complainant outside of work. As a result of the LCA, Complainant was demoted to a GS-7; required to serve a 30-day suspension; and prohibited from engaging in any other misconduct, including outside of work, for the next two years. See ROI at 474-76. The AJ noted that even if the Agency had relied on the LCA, this was not a protected basis and did not constitute unlawful discrimination. With regard to claim 2, the AJ found that Complainant established a prima facie case based on age, sex, race and color because the Selectee in claim 2 (S2) was outside of Complainant’s protected bases. The AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the non-selection in claim 2 and Complainant failed to present any evidence of pretext. Therefore, the AJ concluded that Complainant did not prove either non-selection was due to any of his protected bases. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. Complainant filed the instant appeal. CONTENTIONS ON APPEAL Complainant did not present any arguments on appeal. The Agency responds that the AJ correctly found that there were no genuine issues of material fact in dispute and her decision, finding no discrimination, should be affirmed. ANALYSIS AND FINDINGS 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). 2021003215 4 Procedural Dismissal We will first briefly address the Agency’s dismissal of Claims 3 through 7 pursuant to 29 C.F.R. § 1614.107(a)(2). 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, the record indicates that Complainant contacted the EEO counselor on May 2, 2017 regarding his April 2017 non-selection (claim 1). See ROI at 43. However, Complainant did not mention the incidents in claims 3 through 7 at that time, but waited until September and October 2017 to include them as an amendment to his formal complaint. See ROI at 135-39. Complainant explained that he did not notice the pattern of alleged abuse and retaliation until the summer of 2017. We note, however, that Complainant has not raised an allegation of hostile work environment. All the incidents, concerning multiple non-selections and the execution of the LCA, were each a discrete act that triggered the 45-day limitation once Complainant became aware of them. In addition, Complainant acknowledged that he became familiar with EEO time limits during his prior EEO activity. See ROI at 165. Therefore, we find that the Agency properly dismissed claims 3-7 pursuant to 29 C.F.R. §1614.107(a)(2). Summary Judgment Next we must determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). 2021003215 5 We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not made any arguments to indicate that issues of material fact are in dispute. We find that the AJ properly determined that there are no genuine issues of material fact in dispute and therefore, her issuance of a decision without a hearing was appropriate. Disparate Treatment 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 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. Affairs 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). Here, the Agency articulated legitimate, nondiscriminatory reasons for both non-selections. With respect to claim 1, the record indicates that no interviews were conducted. Rather, a panel scored the applicants’ resumes, according to six categories including: a willingness to make decisions, the ability to work independently, the ability to work with others, and the ability to manage resources.2 See ROI at 211, 223, 244. 2 We note that the selecting official and recommending official for claim 1 had retired by the time of the investigation and multiple attempts to reach them were unsuccessful. See ROI at 180. 2021003215 6 One scoring panelist noted that Complainant did not receive the best score and further clarified that, while Complainant’s and S2’s resumes received very similar scores, S1’s resume was written more concisely, in the proper format, and with better references. See ROI at 248. Another panelist concurred that Complainant was not selected because his resume did not receive the best score. See ROI at 228. With respect to claim 2, the recommending official (RO) stated that he made his decision based on the applicants’ resumes and their references. See ROI at 192. The RO further explained that S2 was chosen because she had better references, as well as “current operational experience and job task knowledge.” See id. The record also contains Reference Check forms, for both Complainant and S2, reflecting that S2’s references earned the highest mark of “Exceptional” in all categories, whereas Complainant’s was scored as “Above Average” in most categories. See ROI at 405-406, 432-33. In a non-selection case, a Complainant may show that an employer’s reason for the non-selection was pretext for discrimination by demonstrating that her qualifications were “plainly superior” to those of the selectee. Wasser v. Dep’t. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); see also Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) (“differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff for the job in question”). Here, Complainant argued that the Agency’s reasons were pretext for discrimination because he was better qualified for the positions than the selectees. He further asserted that he believed the non-selections were because of the LCA. Moreover, Complainant contended that S2 was pre-selected for the position because she was about to quit working as a Customs and Border Protection Officer. We find that Complainant has not met his burden in proving that the Agency’s legitimate, nondiscriminatory reasons were pretextual. Complainant cannot demonstrate pretext based on his subjective assessment of his own qualifications. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). While Complainant has a bachelor’s degree and S1 does not, the evidence in the record does not indicate that a degree is required for the position. Moreover, Complainant has not shown that his qualifications, in other respects, are so superior to those of S1 that no reasonable person could have chosen S1 over Complainant. Additionally, the Commission will not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive. See Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied, EEOC Request No. 0520120603 (Jan. 31. 2013). To the extent Complainant argues that the non-selections were due to the LCA, we note that the scoring panelists in both non-selections stated that they were not aware of the LCA. See ROI at 193, 212, 225, 243. Furthermore, the LCA is not related to any protected basis and is not evidence of any discriminatory animus. 2021003215 7 Lastly, with respect to Complainant’s assertion that S2 was pre-selected for the position, even assuming arguendo such a preselection occurred, such preselection does not violate the statutes enforced by the EEOC unless he can show that such action was driven by discriminatory animus. See Gautreaux v. Dep’t of the Navy, EEOC Appeal No. 01A33107 (July 29, 2003); Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). Complainant has not submitted any evidence to support his assertions of unlawful discrimination. Mere disagreement with an Agency’s actions is not sufficient to establish pretext. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). Therefore, we find that Complainant has not established that the non-selections at issue were due to discrimination. 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 order finding that Complainant did not establish that he was subjected to discrimination as alleged. 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. 2021003215 8 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. 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. 2021003215 9 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Van P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021004774 Hearing No. 520-2020-00399X Agency No. DHS-CBP-02240-2019 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 27, 2021 final order concerning his 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 was employed by the Agency as a Customs and Border Protection Officer, GS-1895-12, at the Agency’s New York Field Office at the John F. Kennedy International Airport in Jamaica, New York. On October 2, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (white), national origin (Italian), sex (male), age (45), and in reprisal for prior protected EEO activity when, on July 24, 2019, he learned he was not selected for the position of Supervisory Customs and Border Protection Officer, GS-1895-13, advertised under Job Opportunity Announcement No. OFO-IMP-10215916-SJS. 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. 2021004774 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). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment in favor of the Agency finding that Complainant was not subjected to discrimination or reprisal as alleged. In her decision, the AJ concluded the Agency articulated legitimate, nondiscriminatory reasons for declining to select Complainant and that Complainant failed to establish that the Agency’s reasons were pretext for discrimination. The Agency explained that the selection process accounted for a totality of factors; including resumes, supervisor references, interview scores, and input from the managers who oversaw the selected candidates. Complainant’s non-selection was based on various factors cited by the Agency; including, his poor performance as temporary supervisor, average scores on his reference checks that included negative comments about his self-motivation and punctuality, a lower score in the second round of interviews, and a lack of clearance and special knowledge for several vacancies. The AJ did not find Complainant to be more qualified than the selected candidates, or that Complainant’s claims that the Agency’s statements were false or inconsistent as being indicative of intentional discrimination. Additionally, the AJ determined that the Agency did not manipulate Complainant’s interview scores since interview forms for other candidates also appeared to be scratched out, and when Complainant ran out of time when answering a question and received zero points, the record showed it was true that the instructions required the panelists to score zero points when the candidate’s response did not successfully address the question. The AJ concluded that Complainant failed to produce evidence to show the reasons given by the Agency for not selecting him were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting the AJ’s decision. 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). 2021004774 3 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 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 or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. 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 the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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. 2021004774 4 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ardelle P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021005021 Agency No. 4G-780-0114-16 Hearing No. 451-2017-00113X DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 2, 2021 final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Secretary, PS-07, at the Agency’s Austin Plant in Austin, Texas. On July 8, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Vietnam), sex (female), color (yellow), and reprisal (prior protected EEO activity) when: (1) on March 10, 2016, she was issued a notice of seven-day suspension; (2) on April 19, 2016, she was issued a 14-day suspension; (3) on April 28, 2016, she was placed on Emergency Off-Duty Status; (4) on various dates beginning in July 2016, she was subjected to a hostile work environment to include but not limited to sarcastic remarks, false statements made by a coworker and management failed to respond; (5) on or around October 11, 2016, her request for annual leave was denied; (6) on or around October 13, 2016, she was subjected to a Pre-Disciplinary Interview (PDI); (7) on or around December 12, 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. 2021005021 2 2016, she was placed on Emergency Placement in an off duty, non-pay status; (8) on or around January 25, 2017, she was subjected to a Pre-Disciplinary Interview; and (9) Complainant was issued a Notice of Removal dated February 14, 2017, for Unacceptable Conduct. 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). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, as to claim (1), Complainant’s supervisor (S1) testified that she issued Complainant a seven-day suspension for Unacceptable Conduct after Complainant failed to follow instructions, acted in a hostile manner, and ignored direct orders. Regarding claim (2), the Postmaster issued Complainant the 14-day suspension based on Complainant’s "failure to discharge properly the duties of the position” when he served as Complainant’s acting supervisor for one week. The Pflugerville Postmaster explained that he required Complainant’s assistance in setting up a teleconference with 80 offices. Complainant failed to respond to his requests for assistance and he had to drive 20 miles to Complainant's office, at which point she informed him that he was “to leave a message.” The Postmaster regarded Complainant’s response to his request for assistance to be insubordinate and stated that he considered Complainant's prior disciplinary history in deciding to issue the 14-day suspension. With respect to claim (3), the Tyler Postmaster testified that Complainant was placed on Emergency Off Duty Status on April 28, 2016, after Complainant displayed the potential to be a danger to herself, and others, during a workplace violence interview. The record indicated that the Postmaster issued the Emergency Procedure to Complainant and that Complainant refused to sign the document. As to claim (4), Complainant alleged that her co-worker expressed resentment toward her after Complainant accepted the Secretary position in June 2015 and made false statements about her. Complainant did not provide specific information about the remarks allegedly made. Nonetheless, S1 stated that she looked into Complainant’s allegations against her co-workers and that there were “findings” against Complainant rather than her co-workers. Regarding claim (5), S1 recalled denying one of Complainant's leave requests; although, she was uncertain which one it was. S1 stated that the reason for the denial was because Complainant submitted her leave request just prior to the dates requested and there was no one to relieve Complainant during her requested absence. With respect to claim (6), the Taylor Officer in Charge conducted a PDI with Complainant based on Complainant's failure to follow instructions. As to claims (7) - (9), S1 decided to place Complainant on an Emergency Placement off-duty, non-pay status on December 12, 2016, after Complainant admitted to discarding files that the Manager's Office was required to retain; including Postmaster training files, contract files, how- to files, Standard Operating Procedure files, distribution files, P.O. Box audit files, purchase card statements, Postmaster credit card authorizations, phone books, all guides and other records and 2021005021 3 files. S1 affirmed that Complainant was found to be a threat to the remaining office records. Management conducted a PDI with Complainant and Complainant admitted she discarded numerous files that were required to be retained. S1 subsequently issued Complainant a Notice of Removal based on her destruction of Postal property and documents in violation of Agency rules and policies. The AJ concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting the AJ’s decision. 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 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 or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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: 2021005021 4 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). 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. 2021005021 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felton S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021005035 Hearing No. 480-2021-80128X Agency No. 4F-900-0254-20 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 11, 2021 final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Manager, Post Office Operations, EAS-23 at the Agency's Los Angeles Customer Service District Center in Los Angeles, California. On August 29, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian Filipino), national origin (Filipino), disability (Diabetes and Anxiety Disorder), and reprisal (prior protected EEO activity) when: (1) on or about June 6, 2020, his request for a non-competitive downgrade (transfer) to the vacant Postmaster (EAS-22) position at South Gate Post Office was not granted; (2) on July 2, 2020, during a Power Point meeting and on an unspecified date during a Zoom meeting, his manager made negative humiliating comments about him in front of his co-workers; (3) on or about July 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. 2021005035 2 2, 2020, his manager threatened to involuntarily transfer him to the San Pedro Office; and (4) on July 6, 2020, his request for a reasonable accommodation to be transferred into the vacant Postmaster (EAS-22) position at South Gate Post Office was not granted. 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). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, the AJ determined that the record reflected that on June 8, 2020, Complainant had a conversation with the District Manager (DM) regarding a non-competitive downgrade to the vacant Postmaster position at South Gate. In a letter dated June 15, 2020, Complainant cited to “health and personal reasons” as the reason for his request. In a subsequent letter, Complainant stated that these health and personal reasons comprised of a dying mother, a failing business, possible divorce, diabetes that was “getting worse,” and an upcoming foot surgery. DM denied Complainant’s request to downgrade to the South Gate Post Office Postmaster position because of Complainant’s experience level. In the alternative, DM offered Complainant a downgrade to San Pedro based on his experience level. Complainant refused the offer. Regarding the July 2, 2020 meeting, the record reveals that Complainant alleged that DM stated “I want to sit here and not do anything or be involved and see how it feels. I also want to see how everybody reacts when I am sitting here not doing anything and just nodding my head up and down and not doing anything.” Complainant admitted he was not identified specifically, but he believed the comments to be directed at him. In addition, Complainant alleged during a Power Point presentation DM cut him off while he was presenting and said his slides were “unacceptable” and that “"this is why your team is not doing good in safety because you are not fully involved.” To the extent that Complainant’s letters could be interpreted as a request for reasonable accommodation, the AJ determined that Complainant failed to show that the alternative accommodation offered would have been ineffective. As a result, the AJ found that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. In addition, the AJ found that Complainant failed to show that Agency management’s actions were based on discriminatory or retaliatory animus. Finally, the AJ concluded that the totality of the conduct alleged was insufficiently severe or pervasive to establish a hostile work environment. Accordingly, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting the AJ’s decision. 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. 2021005035 3 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 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 or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021005035 4 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2021005035 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joan A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021005060 Hearing No. 410-2020-00129X Agency No. 2001-0508-2019103256 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 27, 2021 final order concerning an 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. At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical Support Assistant, GS-0679-05 at the Atlanta VA Medical Center in Decatur, Georgia. The record reveals that on October 2, 2018, Complainant emailed the Local Reasonable Accommodation Coordinator (LRAC) requesting to be removed from the Emergency Department (ED) as a reasonable accommodation. Complainant’s supervisor signed an Accommodation Request Determination noting that although Complainant’s request for reassignment could not be provided, an alternative effective accommodation was offered: access to the Employee Assistance Program and two additional 10-minute breaks. Complainant was later offered and accepted to work in another area of the ED. 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. 2021005060 2 In March 2019, Complainant again requested to be reassigned from the ED. In the request, Complainant described an incident that occurred on or about March 4, 2019, when she went into a male veteran/patient’s room when the veteran/patient was getting ready to use the bathroom and also stated that she was physically assaulted by a veteran that resulted in a contusion in her arm. In addition, Complainant stated that she had experienced military sexual trauma (MST) flashbacks. On April 11, 2019, LRAC responded that Complainant was already being accommodated for her mental health condition and requested additional medical documentation in support of her new request. Complainant did not submit any additional medical documentation and instead resigned effective April 26, 2019. On August 5, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and disability (Post Traumatic Stress Disorder and depression) when: (1) on April 11, 2019, she was denied reassignment out of the Emergency Department (ED) as a reasonable accommodation; and (2) effective April 26, 2019, she was forced to resign. 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).2 Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. In the decision, the AJ determined that Complainant was not denied a reasonable accommodation nor was she constructively discharged. The AJ found that Complainant refused to provide sufficient medical documentation in support of her request; therefore, Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Additionally, the AJ found that there was no evidence that any Agency official acted with discriminatory animus and Complainant’s work environment was not so intolerable such that a reasonable person would have felt compelled to resign. As a result, the AJ found that Complainant was not subjected to discrimination or a constructive discharge as alleged. The Agency issued its final fully adopting the AJ’s decision. The instant appeal followed. 2 Claim (2) (constructive discharge) was processed separately as a mixed-case complaint. The Agency issued a final decision finding that Complainant was not constructively discharged and provided Complainant appeal rights to the Merit Systems Protection Board (MSPB). There is no evidence in the record demonstrating that Complainant filed an appeal with the MSPB. Nonetheless, the Commission properly may assume initial jurisdiction of a mixed case issue (i.e., an adverse action which is properly within the jurisdiction of the MSPB) when, for example, the allegation is so firmly enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. See Richardson v. Dep't of Veterans Affairs, EEOC Appeal Nos. 01982915 01984977 (Nov. 5, 2001). Here, we find that this claim is so firmly enmeshed in the EEO forum that it would better serve the interests of administrative economy to address it in the instant appeal. 2021005060 3 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. The record supports that Complainant failed to provide documentation in support of her reasonable accommodation request and chose to voluntarily resign in the middle of the reasonable accommodation process thereby preventing the Agency from completing the accommodation process. Additionally, there is no evidence demonstrating that any Agency official was motivated by discriminatory animus. Furthermore, in light of our finding that the alleged conduct was not based on discriminatory factors, we conclude that Complainant failed to prove that her resignation was a constructive discharge from the Agency. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 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. 2021005060 4 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. 2021005060 5 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maya F.,1 Complainant, v. Lloyd D. Austin, III, Secretary Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021005063 Hearing No. 410-2021-00122X Agency No. DeCA-00218-2019 DECISION On September 16, 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 August 17, 2021 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Produce Manager, GS-1144-07, at the Agency’s Kings Bay Navy Commissary at Kings Bay Base in Georgia. On October 21, 2019 (and later amended), Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race (African-American), sex (female), color (Black), disability (Physical), and age (48) 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. 2021005063 2 1. Complainant was subjected to condescending, derogatory remarks and insults from the Assistant Commissary Officer (S1) both verbally and in writing impeding her ability to perform her job duties; 2. On July 10, 2019, Complainant received a Letter of Reprimand for Negligent Performance of Duty; 3. On September 11, 2019, Complainant was issued a Notice of Proposed Suspension; 4. On November 6, 2019, she was issued a seven-day suspension, effective December 8, 2019; and 5. In December 2019, she began to experience a change in the assignment of duties, was harassed, and issued a performance improvement plan by the Store Director (S2). 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 a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. In the decision, the AJ found that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (1), Complainant failed to provide any evidence of condescending, derogatory remarks and insults from S1. The evidence of record demonstrated that S1’s emails were sent as directives and for informative purposes. In claim (2), Complainant received a Letter of Reprimand for Negligent Performance of Duty which was preceded with S1 notifying Complainant that her method of conducting the produce inventory was incorrect, and the produce department inventory was out of tolerance for multiple months. Complainant was also provided an action plan with initiatives on how to reinstate tolerance in the produce department as alleged in claim (5). Complainant acknowledged her method of conducting the produce monthly inventory was inconsistent with the method S1 and S2 wanted. The AJ noted that the record included multiple conversations with Complainant regarding her inventory being out of tolerance, multiple action plans issued to get Complainant’s department in tolerance, multiple Memoranda for Record detailing incidents where Complainant failed to follow her supervisor’s directives, as well as multiple email communications detailing incidents were Complainant was absent without leave or failed to follow leave procedures and insubordinate conduct. The performance issues remained unresolved and led to the issuance of a Seven-Day Suspension raised in claims (3) and (4). The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 2021005063 3 ANALYSIS AND FINDINGS 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 must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. The record showed that the Agency articulated legitimate, non- discriminatory reasons for its actions as more fully discussed above. Agency management explained Complainant’s work deficiencies, including violating instructions related to inventory management for many months which caused her unit to be out of tolerance. Consequently, management took the actions that it deemed appropriate to try to correct her work performance, including issuing her work plans, reprimands, and, eventually, a suspension. Although Complainant disagreed with management’s perceptions, she did not offer evidence that the stated reasons were untrue. Moreover, Complainant did not provide sufficient evidence that the named management officials in this matter harbored discriminatory animus. 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, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021005063 4 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). 2021005063 5 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregory F.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2021005067 Hearing No. 520-2021-00052X Agency No. PH-19-0108 DECISION On September 17, 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 August 9, 2021, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was a retiree, seeking employment with the Agency. On October 31, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Jewish), national origin (Jewish), sex (male), religion (Jewish), age (born 1945) and in reprisal for prior protected EEO activity 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. 2021005067 2 1. On July 7, 2019, Complainant became aware he was not selected for the position of Industrial Specialist General, GS-1150-12 position in Israel; 2. On or around September 29, 2019, he became aware that he was not selected for the position of Industrial Property Management Specialist, GS-1103-11, at the Agency’s headquarters; and 3. On November 8, 2019, Complainant became aware that he was not selected for the position of Contract Administrator, GS-1102-12, in San Antonio, Texas. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, the AJ found that Agency officials articulated legitimate, nondiscriminatory reasons for its actions. Specifically, it was undisputed that Complainant retired from federal service in January 2015 to obtain retirement benefits. Additionally, it was undisputed that all of the positions to which Complainant applied were for full time, permanent positions. Pursuant to Agency policy, Complainant was only eligible for temporary or term appointments as an annuitant, and not permanent positions absent special approval. Additionally, annuitants may only be rehired on an as-needed, by-name request basis, “to meet critical mission needs,” as outlined in Agency policies. As a retired annuitant, Complainant could not be hired for a permanent position, unless by-name request with selecting official justification and approval by the Agency’s Director. None of the selecting officials in this case used the non-competitive process, nor did they find it appropriate to provide justification to seek Director approval to fill the positions with a rehired annuitant. Complainant was therefore ineligible for the three positions at issue. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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. § 2021005067 3 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 must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. The record showed that the Agency articulated legitimate, non- discriminatory reasons for its actions. Complainant was ineligible for placement in a permanent position because he was a federal retiree and annuitant and Agency officials determined it was unnecessary to seek non-competitive means or special justification to fill the positions at issue. Although Complainant disagreed with management’s stated reason, he did not offer evidence that the stated reasons were untrue. Moreover, Complainant did not provide evidence that the named management officials in this matter knew him or harbored discriminatory or retaliatory animus. 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, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, for the reasons stated here, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021005067 4 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2021005067 5 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wade H.,1 Complainant, v. Marty Walsh, Secretary, Department of Labor (Bureau of Labor Statistics), Agency. Appeal No. 2021005070 Hearing No. 570-2020-01561X Agency No. DOL-20-11-046 DECISION On September 17, 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 final action concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Economist, GS- 0110-12, at the Agency’s Bureau of Labor Statistics in Washington, D.C. On January 12, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American) and religion (Christian/Protestant) 2 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. 2 We note that Complainant additionally alleged discrimination on the basis of parental status. The Commission does not have jurisdiction over claims of parental status discrimination. Moran v. Dep't of Veterans Affairs, EEOC Appeal No. 01A10499 (Oct. 8, 2002). Accordingly, we will not address parental status as a basis herein. 2021005070 2 1. In May 2019, Complainant’s supervisor told him that an email he sent in which he apologized to another employee and explained the religious basis of his need to do so was “inappropriate” and provided Complainant with a document in which she expressed concerns about his behavior and recommended that he seek treatment from the Employee Assistance Program (EAP); 2. From May 2019 to October 2019, Complainant’s supervisor subjected him to weekly meetings that Complainant regarded as harassing; 3. On an unspecified date subsequent to May 2019, Complainant’s supervisor introduced a policy under which employees were required to work mandatory phone shifts, which Complainant believes targets Complainant and Complainant’s ability to care for Complainant’s child; and 4. On October 18, 2019, Complainant’s supervisor rated Complainant “Minimally Satisfactory” on several elements of Complainant’s Fiscal Year (FY) 2019 Performance Appraisal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. In the decision, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As to claim (1), Complainant alleged he was subjected to harassment when his supervisor informed him that an email he sent, in which he apologized for using the term “Indian giver,” was inappropriate. However, Complainant’s supervisor (S1) explained that Complainant sent the email in response to a co- worker’s concern, but courtesy copied a large group of people, none of whom were privy to the original email communication or had reason to be involved. S1 noted Complainant’s email cited his religion and race and included a statement that he was looked at by people as being “fresh out of prison.” S1 affirmed that Complainant additionally stated he would resign from the team. S1 asserted that she met with Complainant to discuss her concerns, provided him with the EAP referral, and let him know that his work was of value and he was not being asked to leave the team. Regarding claim (2), S1 requested the reccurring meeting when Complainant’s FY2019 mid-year review revealed he was not meeting three of his six performance standards. The weekly meetings with Complainant were intended as a progress check-in during which they could discuss the status of his work on team projects, training, and other assignments. With respect to claim (3), the policy was introduced to address the staff’s escalating practice of coming to work later in the morning when no one was available to answer the telephone and all employees in the unit were required to sign up for two shifts a week. 2021005070 3 Finally, as to claim (4), Complainant was rated as “Minimally Successful” because, despite being informed at the mid-year review of his declining performance; weekly meetings to discuss his progress; and assistance from other staff members, Complainant missed multiple project deadlines. In addition, S1 explained that Complainant lacked program knowledge and his customer service skills had been a concern throughout the year. In particular, S1 noted Complainant’s inability to answer detailed questions often resulted in his inability to respond to inquiries entirely. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision, finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged, became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 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 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. 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 the parties’ 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 action. 2021005070 4 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). 2021005070 5 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyree L.,1 Complainant, v. Louis DeJoy, Postmaster General U.S. Postal Service (Field Areas and Regions), Agency. Appeal No. 2021005072 Hearing No. 410-2020-00527X Agency No. 4K-300-0102-20 DECISION On September 14, 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 August 11, 2021, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Agency’s Doraville Post Office in Doraville, Georgia. On July 30, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (European American/Caucasian), color (White), age (66), and in reprisal for prior protected EEO activity 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. 2021005072 2 1. On January 6, 2020, Complainant was placed on Emergency Placement; and 2. On February 8, 2020, he was issued a Notice of Removal. The pertinent record shows that Agency management placed Complainant on Emergency Placement, after Complainant and another employee (co-worker) got into a physical altercation. The co-worker took exception to Complainant’s use of the cart that was next to the co-worker’s station. Complainant argued that the coworker was the instigator. The Agency issued a Notice of Removal to both Complainant and the younger co-worker, based on improper conduct and the violation of the Agency’s Zero-Tolerance policy. After Complainant grieved the Notice of Removal notice, the Agency reduced his notice to a 14-day suspension. Complainant claimed that the suspension was still discriminatory, because he averred that he believed the Agency was trying to get rid of him because of his age. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. In the decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not show to be a pretext for unlawful discrimination. Namely, Complainant and the co-worker were both placed on Emergency Off-Duty status and subsequently issued notices of removal following their physical altercation in violation of the Agency’s policies. The Agency did not assert that Complainant started the altercation; rather, under Agency policies, Complainant should have walked away and instead made contact with the co-worker’s face. Although Complainant was not the initial aggressor in the altercation with the co-worker, the Agency’s Zero-Tolerance policy did not limit its application to initial aggressors. Instead, the Agency adopted a broad definition of “threat” and “assault.” Assault is defined as any willful attempt to inflict upon the person of another, when coupled with an apparent ability to do so, or any intentional display of force that would illicit reasonable fear or reasonable expectation of immediate bodily harm. In addition, the National Agreement did not limit the application of Emergency Procedure to initial aggressors. The removal notice was later reduced to a 14-day suspension. Accordingly, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS 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). 2021005072 3 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 must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. The record showed that the Agency articulated legitimate, non- discriminatory reasons for its actions. The Agency believed that Complainant engaged in inappropriate conduct when he struck another employee and violated the Zero-Tolerance Policy. and the Agency took the actions that it deemed appropriate against both employees. Although Complainant disagreed with management’s perceptions, he did not offer evidence that the stated reasons were untrue. Moreover, Complainant did not provide any evidence that the named management officials in this matter harbored discriminatory or retaliatory animus. 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, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, for the reasons stated here, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021005072 4 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. 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. 2021005072 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliot M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021005085 Hearing Nos. 490-2016-00094X; 451-2016-00207X; 490-2017-00152X Agency Nos. 2003-0010-2015103173; 2003-0010-2016100187; 2003-0010-2016102280; 2003-0010-2016103084 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 August 12, 2021 final order concerning his equal employment opportunity (EEO) complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract Specialist, GS-1102-13, at the Agency’s Central Network Contracting Office in North Little Rock, Arkansas. On August 5, 2015, Complainant filed an EEO complaint (Agency No. 2003-0010-2015103173) alleging that the Agency discriminated against him on the bases of race (African-American), sex 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. 2021005085 2 (male), and disability (physical) when management failed to respond to his request for a reasonable accommodation. On January 7, 2016, Complainant filed a second EEO complaint (Agency No. 2003-0010- 201100187) alleging that the Agency discriminated against him on the bases of race, color (black), age, disability, and in reprisal for prior protected EEO activity when, on October 6, 2015, Complainant learned that the Director of Contracting (S1), failed to select him for the position of Supervisory Contract Specialist (Division Chief), under Vacancy Announcement No. SAOC16-SJB-15-VO1461254. On March 24, 2016, Complainant filed a third EEO complaint (Agency No. 2003-0010- 2016102280) alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race, disability, and in reprisal for prior protected EEO activity) as evidenced by multiple incidents including, inter alia: 1. On January 6, 2016, S1 rated Complainant “Fully Successful” on his annual performance appraisal; 2. On January 7, 2016, the Supervisory Contract Specialist (S2) directed Complainant to go home after Complainant fell at work and told Complainant to call him when Complainant got home, or he would face disciplinary action; 3. On January 14, 2016, the Deputy Director of Contracting (S3) and other management officials denied Complainant’s request for a reasonable accommodation; 4. On April 12, 2016, Complainant’s request for advanced sick leave was denied; 5. On April 22, 2016, Complainant was threatened with disciplinary action for forwarding an email to his subordinate employees about the Fiscal Year 2016 Federal Employee Viewpoint Survey; 6. On April 28, 2016, Complainant’s request for advanced sick leave was again denied; 7. On May 4, 2016, Complainant was issued an admonishment for failure to follow instructions; 8. On May 6, 2016, Complainant’s request for a reasonable accommodation to telework due to medication he was taking was denied; and 9. On May 10, 2016, management ordered Complainant to return to duty because they deemed his medical condition as being “minor injuries. On July 27, 2016, Complainant field a fourth EEO complaint (Agency No. 2003-0010- 2016103084) alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race, age, disability, and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia: 10. In January 2016, the Agency failed to provide him a copy of the investigative report concerning an internal fact-finding in his hostile work environment claim; 2021005085 3 11. On June 18, 2016, S1 issued Complainant a proposed suspension for violating the Privacy Act and other laws and regulations pertaining to disclosure; 12. On January 30, 2017, management decided to issue a 14-day suspension; 13. On July 20, 2016, management denied his request to telework three days per month for four to six months from San Antonio as a reasonable accommodation; and, as amended, 14. Beginning on or about January 12, 2017, S2 (who had been promoted to the Division Chief, NCO-16, Division II) asked Complainant to provide him a daily report identifying the status of the actions within his team that were worked on and completed; 15. On or around January 31, 2017, management denied his requests for reassignment as a reasonable accommodation; 16. On February 2, 2017, Complainant was involuntarily detailed to a position of Procurement Technician; 17. In February 2017, management denied Complainant’s training requests; and 18. On March 3, 2017, the now Division Chief (S2) discredited Complainant when he falsely alleged that a contractor contacted the Director to complain or raise concerns about Complainant’s work. The pertinent record shows that Complainant’s duty station was in Little Rock, Arkansas. He held a supervisory position, for which his essential duties required his presence in Little Rock. He experienced complications from several chronic medical issues involving his back, shoulder and knees. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings. The AJ assigned to the matters consolidated the complaints for a hearing. The AJ held a three- day hearing on August 4, 5, and 7, 2020, and issued a bench decision on August 25, 2020, finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, with respect to Complainant’s reasonable accommodation claim in the first complaint, the AJ credited the testimony of the management officials who testified that the essential functions of Complainant job as a supervisor were not compatible with 100 percent telework. The AJ reasoned that Complainant wanted to be allowed to work fulltime in San Antonio so he could see his doctor, who was a primary care physician. The AJ found the Agency offered him an alternative reasonable accommodation, including an ergonomic assessment/workstation and protected leave. Complainant rejected the Agency’s offered alternative accommodations and failed to participate in the interactive process with the Agency. The AJ noted that nothing in the record indicated that there was ever a need for full-time telework or that full-time telework from a remote location from where the job site was located was required as a reasonable accommodation. Complainant later requested full-time telework again and the Agency offered alternative accommodations which Complainant continued to reject. 2021005085 4 Complainant made a third request for full-time telework and the Agency offered alternative accommodations including an ergonomic assessment/workstation, telework five days per pay period, and a first-floor office. Complainant again rejected these offered accommodations. As a result, the AJ found that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act in the first complaint. Regarding the second complaint, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Specifically, the selecting official testified that the interview panel identified the two top candidates based on resumes and telephonic interviews. Complainant was not selected for further consideration by the panel. The selecting official ultimately selected the selectee based on his stronger interview and desired experience at the Agency and the Corps of Engineers. With respect to the third complaint, the AJ found that the alleged incidents were insufficiently severe and pervasive to establish a hostile work environment. In addition, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For example, regarding his appraisal, Complainant’s supervisor testified that he allowed Complainant to submit a statement about his performance, but he ultimately could not find support for a rating above “Fully Successful.” With respect to Complainant’s fall at work, management explained that after contacting Employee Relations, the best course of action was to have Complainant go home. Complainant objected, and management responded that he could face disciplinary action if he did not follow the instruction to go home. Ultimately, no discipline was issued. As to his reasonable accommodation request, the AJ again noted that Complainant’s request was denied for the identical reasons noted above. Regarding the denial of advanced sick leave, management testified that they followed the applicable rules and policies and denied the request believing that there was some question as to whether Complainant could pay back the leave. As to the Employee Viewpoint Survey incident, management explained that Complainant was in a non- duty status and was instructed not to perform any work. Complainant was admonished for not following instructions. Finally, management issued the return-to-duty notice because Complainant had not submitted medical documentation in support of his absence. As to issues in the fourth complaint, first, Complainant was advised to make a request under the Freedom of Information Act to obtain the information he sought because it could not be released under the Agency’s policies. Next, Complainant was denied advanced leave for the same reasons discussed above. Complainant’s reassignment request was denied as a reasonable accommodation because reassignment was the accommodation of last resort and Complainant had declined the Agency’s offered alternative accommodations. Complainant was issued a proposed suspension because he had violated the Privacy Act by accessing and sharing the timekeeping records of another supervisor. Agency management later upheld the suspension. Regarding Complainant’s reasonable accommodation request to telework three weeks per month for four to six months from San Antonio, the AJ noted again that the Agency offered alternative, effective accommodations which Complainant accepted for the first time. 2021005085 5 With respect to the status reports, management requested the reports to access the teams’ progress. Other supervisors and sections were required to submit the reports as well. With respect to his involuntary detail and denial of training claims, the AJ found that Agency officials credibly testified that these events occurred based on errors in the Agency’s system. The Agency’s system starts generating emails before an employee lapses in certification. Management forwarded Complainant the emails regarding his recertification needs. Complainant had, but did not submit, documentation indicating that he was up to date on his certification. Since management had no proof that he was up to date on certification, Complainant was temporarily detailed out of his position. When the mistake was discovered, Complainant was returned to his position and his training credits were updated. Finally, management officials testified that they simply wanted Complainant to follow up with the contractor about an outstanding issue. The AJ found that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ’s decision should be overturned because it is not supported by substantial evidence. Complainant asserts that each of the Agency’s stated legitimate, non-discriminatory reasons are either non-existent, fail to address Complainant’s concerns, or are simply not worthy of credence. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 2021005085 6 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination or reprisal by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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. 2021005085 7 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. 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brittney B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Request No. 2021005096 Appeal No. 2021002613 Agency No. DECA-00253-2015 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021002613 (September 2, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The previous decision reversed the Agency’s final decision and found that Complainant established that she was denied a reasonable accommodation for her disability. We observed that the Agency, in its final decision, found that Complainant established a prima facie case of entitlement to an accommodation and that, “Complainant’s accommodation request was inexplicably delayed for approximately [ten] months, between November 2014 and September 2015.” The previous decision noted that the Agency found that, “Complainant did not provide any corroborative evidence that the delay was based on her disability.” 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. 2021005096 2 We, however, found that the Agency failed to promptly provide Complainant a reasonable accommodation, and it also failed to provide a reasonable justification for the ten-month delay. In so finding, we noted that Complainant was proactive in pursuing her reasonable accommodation request by following up with various managers and completing the reasonable accommodation form numerous times. The previous decision found that the Agency’s delays were unnecessary and violated the Agency’s responsibility to expeditiously respond to a request for reasonable accommodation. We determined, moreover, that the Agency’s significant delays demonstrated a lack of good faith with regard to the Agency’s responsibilities under the Rehabilitation Act. In its Request for Reconsideration, the Agency asserts it never received a copy of Complainant’s notice of appeal, and it did not receive any notice that Complainant had in fact appealed. The Agency also contends that neither the Agency nor its counsel received Complainant’s brief or the attachments to the brief as well. The Agency maintains that it had no opportunity to reply to Complainant’s brief on appeal, and therefore it was not afforded with an opportunity to be heard. The Agency further maintains that we failed to adhere to a de novo standard of review, failing to specifically address whether Complainant established that she was a qualified individual with a disability. The Agency argues also that we improperly ordered training and disciplinary referrals for the responsible management officials, while rewarding Complainant with compensatory damages, attorney fees, back pay. We however find the Agency’s arguments regarding the notification of Complainant’s appeal to be unavailing. In so finding, we note that the Agency was sent a request for documentation regarding the appeal and the Agency responded. In addition, Complainant’s attorney provided the Agency with a copy of Complainant’s brief on appeal along with the certificate of service, reflecting that the brief was provided to the Agency’s address of record. Moreover, the Agency sent the Commission a “Designation of Agency Representative” notification, further evidencing that the Agency was provided with notice of Complainant’s appeal. We find that the Agency simply did not avail itself of the opportunity to respond to Complainant’s appeal. The Agency argues that the previous decision failed to adhere to a de novo standard of review, failing to specifically address whether Complainant established that she was a qualified individual with a disability. However, we note that the Agency found in its FAD that Complainant was a qualified individual with a disability and Complainant did not challenge on appeal. As such, we find that the previous decision properly found that it need not address the matter further. Furthermore, pursuant to 29 C.F.R. § 1614.501(a)(2), to remedy a finding of discrimination, the Commission may order the Agency to provide full relief, to include corrective, curative or preventive actions to ensure that violations of the law similar to those found will not recur. Based on this regulatory authority, it is well-established that the Commission may properly order an Agency to provide relevant EEO training to employees as a measure to prevent future occurrences of discrimination. See Wild v. Dep't of Def., EEOC Request No. 05A10058 (Mar. 16, 2002). 2021005096 3 After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2021002613 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER The Agency shall take the following remedial actions: 1. Within 60 calendar days from the date this decision is issued, the Agency shall restore any leave used by Complainant due to the Agency's delay in providing her with a reasonable accommodation. 2. The Agency shall pay reasonable attorney's fees and costs incurred for the processing of the initial appeal as well as the instant request for reconsideration in accordance with the paragraph entitled “Attorney's Fees.” 3. Within 90 calendar days from the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant's claim of compensatory damages. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages within 30 days after the completion of the investigation. 4. Within 90 calendar days from the date this decision is issued, the Agency shall provide 8 hours of in-person or interactive training for the responsible officials (S1, M1, and D1) on the Rehabilitation Act.2 The training shall emphasize the Rehabilitation Act's requirement with respect to an Agency's duties to timely respond to employees' requests for a reasonable accommodation to ensure that similar violations do not occur. 5. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary actions against the responsible management officials (S1, M1 and D1). If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 2 The record reflects that some of the involved management officials have since retired from the Agency. 2021005096 4 6. The Agency shall post the attached notice in accordance with the paragraph below entitled “Posting Order.” The Agency is directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Fort Benning Commissary copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled ““Implementation of the Commission's Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2021005096 5 If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2021005096 6 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 7, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zetta B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Request No. 2022000030 Appeal No. 2020003201 Hearing No. 480-2016-00041X Agency No. FS-2015-00277 DECISION ON REQUEST FOR RECONSIDERATION The Agency requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003201 (September 2, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The Agency’s request for reconsideration is DENIED; however, the Commission MODIFIES the previous decision on its own motion. 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. 2022000030 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Civil Engineer (Assistant Forest Engineer - Facilities), GS-0810-12, at the Sierra National Forest in Clovis, California. On April 30, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian) and sex (female) when: 1. on December 15, 2014, Complainant was notified by her supervisor that she was not selected for the GS-0810-12/13, Supervisory Civil Engineer (Forest Engineer) position, advertised under Vacancy Announcement Number: 14-0515-52425D-mds; 2. in 2012 and 2013, on April 2, 2014, and other unspecified dates, Complainant was denied opportunities to complete a detail as a Forest Engineer; and 3. on several dates, Complainant was subjected to various acts of harassment, including but not limited to: a. in June 2014, management notified Complainant’s male coworker of a vacancy announcement for a Forest Engineer position, but failed to provide proof that the same notice was sent to her; and b. on November 20, 2014, a management official expressed surprise that Complainant’s colleague was not selected for a leadership program, given that he was Hispanic. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, arguing that claims 2 and 3 should be dismissed due to Complainant’s failure to timely raise these claims. The Agency also argued that claims 3(a) and 3(b) should be dismissed for failure to state a claim, as the record showed that Complainant was not harmed by either of the alleged incidents and the alleged comment in claim 3(b) was not directed at her and did not reference her sex and/or race. The Agency also asserted that it had legitimate, nondiscriminatory reasons for taking the alleged actions in claims 1, 2, and 3, and that Complainant’s harassment claim must fail because the alleged actions were not sufficiently severe or pervasive to constitute a hostile work environment. The AJ denied the Agency’s motion and held a two-day hearing on February 11- 12, 2020.2 2 The AJ included her denial of the Agency’s Motion for Summary Judgment in all three versions of the Amended Order on Initial Conference and Scheduling Order. 2022000030 3 Following the hearing, the AJ issued a decision on March 13, 2020. The AJ determined that the Agency subjected Complainant to discrimination in claims 1, 2, and 3(b). Regarding the non- selection to the Supervisory Civil Engineer position, the AJ noted that the Agency selected a witness (W1) (Hispanic, male), who was determined to be qualified at the GS-12 level, while Complainant was found qualified at the GS-13 level. The AJ found that this factor alone was sufficient to refute the Agency’s claim that W1 was “better qualified” than Complainant for the position. In addition, the AJ stated that Complainant had certifications, skills, and experience not yet obtained by W1, such as supervisory and training experience. AJ Decision at 9. The AJ also determined that the Agency’s efforts to explain W1’s selection, based on his interview performance, lacked credibility. Specifically, the AJ noted that an interviewer cited Complainant’s “communication difficulties” during her interview, but he admitted that her purported communication difficulties did not impact her ability to train and had never resulted in counseling or discipline. Further, the AJ determined that the interviewer’s assurance that any issue with Complainant’s communication skills “has nothing to do with her accent,” was indicative of animus towards Asians. Id. at 9-10. For claim 2, the AJ found that Complainant credibly testified about requesting detail assignments on multiple occasions, which contradicted the Agency’s explanation that Complainant was not given detail assignments because she did not request them. Regarding claim 3(b), the AJ determined that the record supported the allegation, which provided a motive for the other claims. The AJ found that the Agency’s attempt to justify its actions with respect to claims 1, 2, and 3(b) “utterly failed,” and she concluded that the Agency subjected Complainant to discrimination and harassment based on her race and sex. Id. at 10-12. As for claim 3(a), the AJ found that Complainant failed to prove she had been discriminated against because she was unable to refute the Agency’s proffered legitimate, nondiscriminatory reasons for its actions. The AJ then noted that Complainant requested placement into the Supervisory Civil Engineer position, with backpay and benefits from January 2015, but Complainant did not request compensatory damages.3 Additionally, the AJ observed that Complainant’s representative was not an attorney, so attorney’s fees were not applicable. The AJ ordered the Agency to promote Complainant to a substantially equivalent, permanent, Supervisory Civil Engineer (Forest Engineer) position within her commuting area; retroactive to January 1, 2015, with appropriate benefits. Id. at 8, 12-13. The Agency issued a final order rejecting the AJ’s decision and filed an appeal with the Commission. Complainant appealed the Agency’s final order and opposed the Agency’s appeal. On September 2, 2021, the Commission issued a decision affirming the AJ’s decision. The appellate decision noted that substantial evidence supported the AJ’s findings that the Agency discriminated against Complainant based on her race and sex when it did not select her for the Supervisory Civil Engineer position. 3 Complainant did not appeal the AJ’s decision to not award her any compensatory damages. 2022000030 4 For example, the record suggested that many of the accomplishments that the Agency cited as evidence of W1’s superior qualifications were performed while W1 was under Complainant’s supervision. In addition, there was no basis to reverse the AJ’s overall credibility determinations, as the evidence supported the AJ’s concerns regarding the manner in which W1 represented his qualifications, such as indicating in his resume that he independently performed the work, when in reality, he assisted Complainant and others. Even crediting the Agency’s contention that W1 performed better than Complainant during his interview, there was substantial evidence to support the AJ’s conclusion that Complainant was plainly superior to W1, given the totality of her qualifications, including the comparative breadth of her supervisory experience. Zetta B. v. Dep’t of Agr., EEOC Appeal No. 2020003201 (Sept. 2, 2021). The appellate decision declined to address the Agency’s contentions regarding claims 2 and 3(b), as Complainant would not be entitled to additional remedies. The Commission reversed the Agency’s final order and remanded the complaint to the Agency for remedial action, including the completion of a supplemental investigation concerning Complainant’s entitlement to compensatory damages. The Agency requests a reconsideration of the appellate decision, arguing clearly erroneous interpretations of material fact and law. While the appellate decision declined to address the timeliness of claims 2 and 3(b), the Agency argues that the Commission’s order to determine the amount of compensatory damages due to Complainant fails to limit the supplemental investigation to claim 1. Therefore, asserts the Agency, the appellate decision should have found that both claims 2 and 3(b) are untimely. It contends that such claims should not have to be considered in the supplemental investigation. The Agency also argues that the Commission erred in finding pretext simply by concluding that Complainant had superior qualifications. While the Commission has held that a factor in proving discriminatory intent may be demonstrated when an appellant’s qualifications are observably superior to the selectee, the Agency asserts that the inquiry does not end here. The Agency states that in Workman v. Department of the Navy, EEOC Appeal Number 01973815 (Sept. 3, 1999), the complainant had to produce credible evidence that gender was considered by the panel in making its selection, and the Agency asserts that this case “mirrors the facts” of the instant complaint. The Agency requests that the Commission vacate the September 2, 2021 appellate decision and find in its favor. In the alternative, the Agency requests that the Commission find no discrimination regarding claims 2 and 3(b), and rescind the order to conduct a supplemental investigation of compensatory damages. Complainant did not respond to the Agency’s request. 2022000030 5 ANALYSIS AND FINDINGS After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The Agency argues that the Commission erred in finding pretext for claim 1, simply by concluding that Complainant had superior qualifications. It contends that, while a factor in proving discriminatory intent may be demonstrated when a complainant’s qualifications are observably superior to the selectee, the inquiry does not end there and a complainant needs to produce credible evidence that an unlawful factor was considered by the panel in making its selection, citing to Workman, supra. However, we find the Agency’s reliance on Workman is misplaced. It is well established, as noted in Workman, that a complainant can demonstrate pretext for discrimination, either directly by demonstrating that a discriminatory reason more likely than not motivated the agency’s action, or indirectly by showing that the agency’s proffered reasons are unworthy of credence. In Workman, the Commission overturned an AJ’s finding of discrimination because the evidence did not support the AJ’s determination that the Agency considered sex when making its selection, which would have been direct evidence of discrimination. The Agency seems to argue that, in this case, the Commission should overturn the AJ’s finding of discrimination because Complainant did not provide direct evidence of discrimination. However, the AJ found that the Agency’s proffered reason that W1 was chosen due to his interview “lacks credibility,” thereby establishing Complainant’s claim of discrimination indirectly. AJ Decision at 9. Accordingly, we find that the Agency has not met its burden to show that the appellate decision involved a clearly erroneous interpretation of material fact or law and DENY the Agency’s request for reconsideration. However, the Commission exercises its discretion to GRANT reconsideration on its own motion in order to MODIFY the previous decision. A review of the AJ’s decision shows that she did not award any compensatory damages because Complainant did not request any. AJ Decision at 12- 14. As such, the Commission’s order is modified to remove the order of a supplemental investigation into a claim of compensatory damages. With the removal of this order, there are no remedies awarded for claims 2 and 3(b), and the Agency’s arguments related to these claims are moot. The decision in EEOC Appeal No. 2020003201 otherwise remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER 1. Within thirty (30) calendar days of the date of this decision is issued, the Agency shall promote Complainant to a substantially equivalent, permanent, Supervisory Civil Engineer (Forest Engineer) position within her commuting area; retroactive to January 1, 2015. The Agency shall retroactively promote Complainant to the next appropriate step 2022000030 6 and/or grade, respectively, if appropriate, on the one-year anniversary of her promotion, and then on an annual basis or according to Agency policy; 2. Within sixty (60) calendar days of the date this decision is issued, the Agency shall determine the appropriate amount of benefits (with interest) if applicable, due Complainant from January 1, 2015, to the effective date of her promotion to the Supervisory Civil Engineer (Forest Engineer) position. Complainant shall cooperate in the Agency’s efforts to compute the amount of benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute, as outlined in the section titled, IMPLEMENTATION OF THE COMMISSION’S DECISION. 3. Within ninety (90) calendar days of the date this decision is issued, the Agency shall provide eight (8) hours of training to the members of the interview panel and the selecting official. The training shall address the Agency’s obligations under Title VII of the Civil Rights Act of 1964. 4. Within ninety (90) calendar days from the date this decision is issued, the Agency shall consider disciplining the members of the interview panel and selecting official. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If these individuals have left the Agency’s employ, the Agency shall furnish documentation of their departure dates. POSTING ORDER (G0617) The Agency is ordered to post at its Sierra National Forest facility in Clovis, California copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2022000030 7 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2022000030 8 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janeen S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000119 Hearing No. 451-2018-00274X Agency No. 2003-0671-2018100747 DECISION Complainant filed an appeal pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 13, 2021, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-11, at the South Texas Veteran’s Health Care Systems in the Office of the Chief of Staff in San Antonio, Texas. Complainant retired from the Agency on October 31, 2017. On March 1, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability, age (69), and in reprisal for protected EEO activity: 1. In February 2017, the Chief of Staff for Mental Health asked Complainant when she was going to retire in a mean and sarcastic tone. 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. 2022000119 2 2. On June 26, 2017, the Chief of Staff blamed Complainant for questions she was unable to answer during an ongoing professional practice evaluation (OPPE) conducted by the Office of the Inspector General. 3. On July 12, 2017, the Chief of Staff requested that Complainant meet with her without Complainant’s attorney present. 4. On October 2, 2017, Coworker A blocked Complainant’s path when she exited the room. 5. On September 19, 2017, the Chief of Staff issued Complainant a reprimand. 6. On October 5, 2017, Coworker A yelled at Complainant. 7. From October 5 and 6, 2017, the Chief of Staff charged Complainant Absence Without Leave (AWOL). 8. On October 26, 2017, the Chief of Staff threatened to move Complainant to another office. The Agency issued a Notice of Partial Acceptance dismissing claim (5) as an untimely raised discrete action. The Agency accepted claim (7) as a timely raised discrete action. The Agency found claims (5) and (7) would be considered as part of Complainant’s overall harassment claim.2 At the conclusion of the investigation, 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). Complainant requested a hearing. The Agency filed a motion for summary judgment. Complainant filed a response and the Agency filed a reply. The AJ issued summary judgment in favor of the Agency. The AJ noted Complainant did not show any of the alleged acts were based on any statutorily protected class. Further, the AJ found that Complainant did not show that the alleged acts of harassment were so severe or pervasive so as to rise to the level of a hostile work environment. Regarding her claim of disability discrimination, the AJ found that Complainant did not demonstrate that she is a qualified individual with a disability entitled to protection under the applicable statutes. Moreover, the AJ found that when viewing the evidence in the light most favorable to Complainant, the record shows that Complainant has offered no evidence to support a finding that the Agency’s articulated reasons for its actions are a pretext for discrimination. 2 On appeal, Complainant does not challenge the Agency’s dismissal of claim (5) as an untimely discrete action. Thus, we do not address the dismissal of claim (5) in our decision. 2022000119 3 The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to 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). At the outset, we note that Complainant does not challenge the framing of the accepted claims. Further, we find the record in the present case fully developed. 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 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. We note that Complainant did not clearly identify any disability let alone show she had such a disability. Furthermore, Complainant did not show she had EEO activity prior to contacting an EEO Counselor for this complaint. Regarding the AWOL, the Agency asserted that Complainant did not submit any request for leave to her supervisor prior to her absence and she was therefore placed on AWOL. Complainant has not pointed to any evidence that shows that the supervisor was made aware of a request for leave before the Supervisor placed on her AWOL and Complainant has not shown that similarly situated people were not placed on AWOL under similar circumstances. Further, there is no indication that the decision to place Complainant on AWOL was motivated by discrimination. Even construing any inferences raised by the undisputed facts in favor of Complainant and even if we found she established she was disabled and had engaged in prior EEO activity, 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 the parties’ 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 fully implementing the AJ’s decision finding no discrimination. 2022000119 4 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. 2022000119 5 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. 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Phillis W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2022000124 Hearing No. 420-2021-00089X Agency No. 4G-350-0169-20 DECISION Complainant filed an appeal pursuant to 29 C.F.R. § 1614.403 from the Agency’s September 14, 2021, notice of final action 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. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant at the Auburn Post Office in Auburn, Alabama. Complainant filed an EEO complaint dated September 12, 2020 alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when: 1. On June 17, 2020, she became aware that she was not afforded the same opportunity as her White, male coworker and was being required to take leave 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. 2022000124 2 when she wanted any time off or to attend doctor’s appointments, which placed her at a disadvantage with accumulating annual leave hours. 2. On September 16, 2020, she became aware that on unspecified date(s), she was being held to different work standards than her White, male coworker, by not providing her the opportunity to have three days off in a six-day period unless she utilized her leave. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing. The Agency subsequently issued a final action fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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 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. The record reveals Complainant was afforded a day off without using accrued annual leave. Complainant failed to identify any dates during the relevant time in which she requested but was denied the opportunity to be off work for three consecutive days in a six- day period without utilizing accrued annual leave. Further, we find that Complainant has not identified a similarly situated comparative who was treated differently than her under similar circumstances. Moreover, Complainant has offered no evidence indicating the Agency’s actions were based on either her race or sex. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2022000124 3 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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 action fully implementing the AJ’s decision finding no discrimination. 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. 2022000124 4 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. 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeffry R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, (Pacific Area), Agency. Request No. 2022000178 Appeal No. 2020002824 Agency No. 4F-967-0006-12 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Jeffry R. v. USPS, EEOC Appeal No. 2020002824 (September 13, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant worked for the Agency as a City Letter Carrier in Honolulu, Hawaii. On October 22, 2012, and December 13, 2012, Complainant filed two separate formal complaints alleging discrimination based on disability, as well as unlawful retaliation for prior protected activity, when Complainant was denied reasonable 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. 3 2022000178 accommodations which resulted in the inability to perform the duties of his position and the reduction and elimination of his work hours. In Jeffry R. v. U.S. Postal Serv., EEOC Appeal No. 0120180058 (Sept. 6, 2019), the Commission concluded that the Agency had violated the Rehabilitation Act by delaying its response to Complainant’s request for reasonable accommodations. To remedy the finding of discrimination, the Commission ordered the Agency to determine the amount of backpay owed to Complainant between the period of January 25, 2012 to April 22, 2015 and pay Complainant the assessed backpay to the extent it was not mitigated by a related arbitrator’s award in a grievance filed by Complainant on the same matter. The Commission also ordered the Agency to conduct a supplemental investigation into Complainant’s entitlement to compensatory damages and award Complainant the amount determined. See id. In accordance with the Commission’s order, the Agency conducted a supplemental investigation and awarded $807.00 in pecuniary compensatory damages. Regarding non-pecuniary compensatory damages, the Agency determined that Complainant was entitled to an award of $35,000. In EEOC Appeal No. 2020002824, we modified the Agency’s final decision, by awarding $5,151,60 in past pecuniary compensatory damages, and $140,000.000 in non-pecuniary compensatory damages. In the instant request for reconsideration, Complainant through counsel, argues that the amount of compensatory damages, although increased in the prior appellate decision, remains an inadequate remedy. We have carefully considered Complainant’s arguments and note that the prior decision extensively analyzed this issue, and its computation is clearly supported by the record. We note that there is considerable replication of the arguments on damages raised in the instant request, as made on appeal below. A request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020002824 remains the Commission's decision, including its Order. There is no further right of administrative appeal on the decision of the Commission on this request. 4 2022000178 ORDER Within sixty (60) calendar days from the date this decision is issued, to the extent the Agency has not done so already, the Agency shall pay Complainant: 1. $5,151.60 in past pecuniary compensatory damages. 2. $140,000.00 in nonpecuniary compensatory damages. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Odilia M.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022000183 Agency No. 6Z1M2100521 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 10, 2021, dismissing her complaint alleging unlawful 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sign Painter, WG-9, at the Agency’s Edwards Air Force Base in California. On August 12, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age, and reprisal for prior protected EEO activity when: 1. On April 26, 2021, Complainant’s supervisor and director modified her performance appraisal and career brief. 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. 2022000183 2 2. On October 13, 2020, Complainant returned to Civil Engineering (CE) and became aware that her work conditions had changed, since she had been placed in the same work area as her supervisor. 3. On October 13, 2020, Complainant could not find the belongings that she had left behind. 4. On October 13, 2020, Complainant noticed her locker was no longer in the shop. Her supervisor stated he did not know the locker belonged Complainant, moved it, took the belongings out and put them in a box. 5. On October 13, 2020, Complainant’s supervisor was directed to treat Complainant as a new employee; making sure that she was trained, given PPE, keys and a locker. 6. On March 4, 2021, Complainant had a meeting with management regarding not receiving her locker, keys and work boots, and that the employee that she had been moved from continued to come around her. The Agency dismissed claim 1 pursuant to 29 C.F.R. §§ 1614.107(a)(4), 1614.301(a) on the ground that Complainant had previously raised the matter in a negotiated grievance procedure. Claims 2, 3, 4, 5, and 6 were dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed. On appeal, Complainant argues that the Agency’s dismissal of claim 1 was improper because the allegations in claim 1 differ from those raised during the negotiated grievance procedure. The Agency submitted a brief in response. ANALYSIS AND FINDINGS Claim 1 The Agency dismissed claim 1 on the ground that Complainant had previously raised the matter in a negotiated grievance procedure. EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, an election must be made to proceed under either the negotiated grievance procedure or the EEO complaint procedure (part 1614). The regulation provides that the election is indicated by the filing of a written complaint or timely grievance, whichever is done first. It also provides that an aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination. 2022000183 3 As an employee of the Department of the Air Force, Complainant is employed by an agency subject to 5 U.S.C. § 7121(d). Also, the record shows that she was covered by a collective bargaining agreement that permitted allegations of discrimination to be raised in the negotiated grievance procedure. On June 2, 2021, Complainant’s Union Representative filed a grievance for multiple employees, including Complainant. The Union Representative alleged that management failed to rate Complainant’s performance in accordance with the standards written under her performance plan. Ten weeks later, on August 12, 2021, Complainant filed a formal EEO complaint where she alleged that her supervisor modified her performance appraisal. The Commission finds that allegations of inaccurate performance appraisals were first raised in the negotiated grievance process, and consequently, that Complainant made the election to pursue the matter through that process. She cannot, thereafter, file an EEO complaint based on management’s alleged failure to act on the same matter. We note that on appeal, Complainant argues that the grievance process addressed her 2021 appraisal and that the instant complaint concerns her 2020 appraisal. However, we find that these claims were inextricably intertwined with the Agency’s Performance Management and Appraisal Program and the Union agreement (AFGE MLA Article 15), which were raised in the negotiated grievance procedure. Claims 2, 3, 4, 5, and 6 The matter before us is whether the Agency properly dismissed claims 2, 3, 4, 5, and 6 for untimely EEO counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The alleged dates of discrimination in these claims were October 13, 2020 and March 4, 2021. However, the record shows that Complainant did not contact the EEO counselor’s office until June 3, 2021, which is beyond the 45-day time limit. Complainant does not allege that any circumstances beyond her control prevented her from making timely counselor contact, and she does not claim that she was unaware of the 45-day rule. She has presented no persuasive arguments on appeal or evidence to warrant an extension of the time limit for initiating EEO contact. As such, Complainant has not made an argument for waiver, estoppel, or equitable tolling of the timeline for making initial EEO counselor contact. Therefore, we find the complaint was properly dismissed as untimely. CONCLUSION Upon careful review of the evidence of record, as well as the parties’ arguments on appeal, we conclude that the dismissal of claims 1, 2, 3, 4, 5, and 6 was proper. The Agency’s final decision is AFFIRMED. 2022000183 4 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). 2022000183 5 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kim Y.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000294 Hearing No. 520-2020-00454X Agency No. 4B-110-0030-20 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 1, 2021 final order concerning an 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 was employed by the Agency as a Supervisor, Customer Services, EAS-17, at its Triboro District Post Office in Brooklyn, New York. On January 6, 2020, Complainant filed an EEO complaint alleging discrimination by the Agency based on race (Asian), sex (female), and age (over 40) when on October 24, 2019, she became aware that she was not selected for the Level EAS-19, Attendance Control Officer position in the Triboro District. 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. 2022000294 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). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that the Agency articulated that the selectee, a Labor Relations Specialist, EAS-19, in the Triboro District, was seeking a lateral reassignment noncompetitively, for the Attendance Control Officer position at issue. The Agency further stated that the selectee interviewed better than Complainant by providing a clear and comprehensive strategy for improving attendance problems at the Triboro District, including specific examples of his qualifications for the position at issue. 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 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. 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 the parties’ 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. 2022000294 3 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). 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. 2022000294 4 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tanya D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000295 Hearing No. 451-2019-0009X Agency No. 4G-780-0199-17 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 2, 2021 final order concerning an 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 was employed by the Agency as a Supervisor, Customer Services, EAS-17, at its South Texas Medical Center Station in San Antonio, Texas. On November 21, 2017, Complainant filed an EEO complaint alleging that she was subjected to discriminatory hostile work environment by the Agency based on race (Hispanic), national origin (Mexican American), sex (female), and age (over 40), when beginning on July 27, 2017, and continuing, the following occurred: 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. 2022000295 2 1. Her scheduled days off and begin tour were changed from Wednesday/Sunday to Saturday/Sunday and from 10:30 AM to 10:00 AM; 2. She was required to have two fitness for duty examinations; 3. She was micromanaged and not allowed to make decisions; 4. She was given instructions to stay upfront at the retail window; 5. She was denied overtime opportunities; 6. She was belittled and subjected to inappropriate comments in front of customers; and 7. On August 8, 2017, she was negatively compared to a younger, male employee of a different race. 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). Complainant requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that Complainant failed to show that she was treated less favorably compared to other employees outside her statutorily protected classes. The AJ found that Complainant failed to show that any of the discrete actions were motivated by discrimination and with regard to her claim of harassment, she failed to show that it was related to any protected basis of discrimination. Regarding claim 1, Complainant’s scheduled days off were changed based on operational needs and her inability to report at 8:00 a.m. Further, Complainant’s begin tour time has been 10:00 a.m. and has not changed as alleged. Regarding claim 2, Complainant was asked to provide return to work clearance paperwork upon her return to work due to her extended absence. Complainant was not required to take fitness for duty examinations as alleged. Regarding claim 3, Complainant’s manager (M1) did not micromanage Complainant’s performance; rather as a manager, M1 oversaw the entire office operation, including Complainant’s duties. Regarding claim 4, M1 instructed Complainant, a supervisor, to stay at the retail window in order to comply with the District’s new requirement that a supervisor/manager be at the retail counter. Regarding claim 5, M1 stated that Complainant was not denied overtime; rather overtime was not always needed at the facility on most days, and if it was needed, she was unavailable between 8:00 and 8:30 a.m. at which time the overtime was usually needed to oversee carriers departing for their delivery in the absence of their supervisor. Regarding claim 6, M1 indicated that M1 did not discuss Complainant’s performance in front of customers. 2022000295 3 Regarding claim 7, M1 denied the incident stating that she was on leave from August 3, 2017, through the end of the month. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant submitted no argument on appeal. Complainant does not dispute the framing of the complaint including the bases of discrimination. 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in Complainant’s favor. Complainant has not shown that any similarly situated individuals were treated more favorably than Complainant was treated regarding the allegations in this complaint. There is no indication that any of the allegations were in any motivated by discrimination as alleged. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 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: 2022000295 4 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). 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. 2022000295 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Howard P.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022000430 Agency No. 63-2021-00458D DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 7, 2021, dismissing his complaint alleging unlawful 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 At the time of events giving rise to this complaint, Complainant worked as an Office Operations Supervisor, AD-0301-00, at the Agency’s Area Census Office (ACO) 2580 facility in Rochester, Minnesota. On August 11, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and/or harassment on the bases of race (Black), sex (male), and reprisal when: 1. On or before August 15, 2020, he was harassed by members of a “clique” at the ACO who were upset when Complainant filed a complaint for sexual harassment against their coworker who was then terminated. 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. 2022000430 2 2. On or before August 15, 2020, Complainant was subjected to inappropriate comments regarding his race and possible gang affiliations of staff. 3. On or before August 15, 2020, Complainant’s complaints about the conduct were ignored. 4. On August 15, 2020, he was forced to resign. The Agency dismissed these claims pursuant to 29 C.F.R. § 1614107(a)(2) for untimely EEO Counselor contact. Complainant filed the instant appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. See also, 29 C.F.R. § 1614.105(a)(1). The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, the record shows that Complainant resigned on August 15, 2020, at which time he reasonably suspected discrimination because he alleges the discrimination forced his resignation. All his other allegations concerned incidents that occurred prior to his resignation. Thus, Complainant needed to contact an EEO counselor on or before September 29, 2020, in order for his contact to be timely. However, the record does not establish that Complainant initiated EEO counseling on his claims before July 26, 2021. On appeal, Complainant contends he communicated with the office of the Director of the Chicago Regional Census Center regarding his discrimination complaint in September 2020 and, therefore, the Commission should waive the time limit. He further states EEO training within his facility was untimely, occurring less than one month before his resignation, and he was not notified of the time limits and not otherwise aware of them. The Agency did not file a brief on appeal. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. 2022000430 3 Here, although Complainant states he was not aware of the relevant time limits, he also acknowledged undergoing EEO training less than a month prior to his resignation. Complainant has not provided sufficient justification to warrant tolling of the time limits. In addition, a complainant satisfies the requirement of counselor contact by contacting an agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep’t of the Army, EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). While Complainant asserts he contacted the Chicago Regional Census Center (RCC) in September 2020 regarding his discrimination claims, he provides no evidence of this contact. The record does contain an email, dated March 12, 2021, from an Administrative Specialist at the Chicago RCC showing she referred Complainant to the Agency’s EEO office by providing a specific name, telephone number, and email address. However, Complainant did not contact the EEO office until July 26, 2021, over four months later. In sum, the record does not support a finding that Complainant contacted anyone logically connected to the EEO process with an intent to begin the EEO process until July 26, 2021. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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). 2022000430 4 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. 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. 2022000430 5 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Homer V.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000447 Agency No. ARCEHWV21AUG02647 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 1, 2021, dismissing his complaint of unlawful 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. BACKGROUND During the period at issue, Complainant worked as a Contractor Quality Control (CQC) Systems Manager for a Low-Income Housing Project in Martin, Kentucky through a contract which SAF, Inc. entered with the Agency. On September 23, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), disability, and reprisal (for writing a statement against an Agency employee). In its final decision dated October 1, 2021, the Agency framed Complainant’s claims in the following fashion: 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. 2022000447 2 1) In September 2021, [Complainant] was the only person punished for writing a letter against an [Agency] employee. 2) In September 2021, [Complainant was] removed from the Martin, Kentucky Town of Martin Low Income Housing project and future Huntington District projects. 3) In March 2021, [Complainant[ referred to [his] disability and in September 2021, [Complainant] was referred to as incompetent. The Agency dismissed Complainant’s complaint for failure to state a claim. The Agency reasoned that it had determined through a legal analysis during the pre-complaint process that Complainant does not qualify as an Agency employee for EEO purposes.2 The instant appeal followed. Complainant reiterates that he was removed from the Martin, Kentucky Low Income Housing Project. In response, the Agency sets forth that Complainant does not qualify as an employee of the Agency for EEO purposes. ANALYSIS AND FINDINGS As an initial matter, we note that crux of Complainant’s complaint appears to be that he was removed from the Martin, Kentucky Low Income Housing project by the Agency. The additional matters listed in the Agency’s final decision appear to be background information pertaining to this claim. EEOC Regulation 29 C.F.R. § 1614.103(a) provides that complaints of discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c) provides that within the covered department, agencies, and units, Part 1614 applies to all employees and applicants for employment. 2 We note that the record contains a memorandum dated September 7, 2021 (prior to the Agency issuing its final decision) from an Agency Assistant District Counsel (who appears to be outside of the Agency’s EEO Office) to the Agency’s EEO Office regarding a legal analysis of Complainant’s employment status. The memorandum concluded that Complainant does not having standing as an Agency employee for EEO purposes. The Agency’s final decision appears to reference this memorandum and rely on it in reaching its decision to dismiss Complainant’s complaint. We remind the Agency of its obligation to maintain a firewall between its EEO functions and the Agency’s defensive function. See Management Directive 110 for 29 C.F.R. Part 1614, Ch. 1, (IV)(D) (rev. Aug. 5, 2015). 2022000447 3 In Serita B. v, Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016), the Commission reaffirmed its longstanding position on “joint employers” and noted that it is found in numerous sources. See, e.g., EEOC Compliance Manual Section 2, “Threshold Issues,” Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual); EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) (Enforcement Guidance), “Coverage Issues,” Question 2; Ma v. Dep’t of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision. Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See, e.g., Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 2016); Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are, however, just two of the factors relevant to joint employment under the Commission's long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination. The term “joint employer” refers to two or more employers that each exercise sufficient control of an individual to qualify as the worker's employer. Compliance Manual, Section 2- III(B)(1)(a)(iii)(b). To determine whether the Agency has the right to exercise sufficient control, EEOC considers factors derived from common law principles of agency. See Enforcement Guidance, “Coverage Issues,” at Question 2. EEOC considers, inter alia, the Agency's right to control when, where, and how the worker performs the job; the right to assign additional projects to the worker; whether the work is performed on Agency premises; whether the Agency provides the tools, material, and equipment to perform the job; the duration of the relationship between the Agency and the worker; whether the Agency controls the worker's schedule; and whether the Agency can discharge the worker. EEOC Compliance Manual, Section 2-III(A)(1) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); EEOC v. Skanska USA Bldg., Inc., 550 F.App'x 253, 256 (6th Cir. 2013) (“Entities are joint employers if they ‘share or co-determine those matters governing essential terms and conditions of employment”’) (quoting Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985); see also Ma, EEOC Appeal Nos. 01962389 & 01962390. The language of the contract between the agency and the staffing firm is not dispositive as to whether a joint-employment situation exists. In determining a worker's status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (while contract between staffing firm and agency provided that contract personnel were employees of staffing firm under its administrative supervision and control, agency actually retained supervisory authority over the contract workers). 2022000447 4 On the factor of the right to control when, where, and how the worker performs the job and to assign additional projects, complete agency control is not required. Rather, the control may be partial or joint and still point to joint employment. Shorter v. Dep't of Homeland Sec., EEOC Appeal No. 0120131148 (June 11, 2013) (where both staffing firm and agency made assignments, this pointed to joint employment); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120143162 (May 20, 2015), request for reconsideration denied, EEOC Request No. 0520150430 (Mar. 11, 2016) (where staffing firm wrote and issued complainant's appraisal with input from agency, this pointed toward joint employment). Likewise, where both the agency and staffing firm provided tools, material, and equipment to perform the job, this pointed to joint employment. Elkin v. Dep't of the Army, EEOC Appeal No. 0120122211(Nov. 8, 2012). Similarly, where a staffing firm terminates a worker after an agency communicates it no longer wants the worker's services, this supports a finding that the agency has joint or de facto power to discharge the worker. See, e.g., Complainants v. Dep't of Justice, EEOC Appeal Nos. 0120141963 & 0120141762 (Jan. 28, 2015); see also Skanska USA Bldg., Inc., 550 Fed. App'x at 254, 256 (where defendant removed staffing firm's workers from job site without challenge from staffing firm, and after such removals staffing firm generally fired worker, this pointed to joint employment); Butler v. Drive Auto. Indus. of America, Inc., 793 F.3d 404, 414-15 (4th Cir. 2015). The EEOC considers an entity's right to control the terms and conditions of employment, whether or not it exercises that right, as relevant to joint employer status. Enforcement Guidance, “Coverage Issues,” at Question 2, Example 5 (where an entity reserves the right to direct the means and manner of an individual's work, but does not generally exercise that right, the entity may still be found to be a joint employer). We find that the record is not sufficiently developed to make a determination as to whether the Agency is a joint employer for the purpose of using the 29 C.F.R, Part 1614 complaint process. Complainant alleges that he was removed from the Martin, Kentucky Low Income Housing Project at the direction of the Agency. In addition, Complainant appears to be alleging, based on statements in the EEO Counselor’s Report and formal complaint, that he was also prevented from working on other projects in the Huntington District. Thus, the circumstances surrounding Complainant’s removal from the Martin, Kentucky project and future projects is significant to whether the Agency is a joint employer for EEO purposes. The record reflects that Complainant’s removal from the Martin, Kentucky project came at the direction of the Agency. The record contains a memorandum dated August 13, 2021, from the Agency’s Contracting Officer. Therein, the Agency’s Contracting Officer sets forth that “[d]ue to [Complainant’s] behavior, the Administrative Contracting Officer (ACO)…issued notice to SAF that [Complainant] was to be immediately removed from the project site and would not be allowed to return…it is my decision to uphold the ACO’s decision to not allow [Complainant] to return to the project site…SAF shall immediately replace [Complainant] with a competent and qualified CQC Systems Manager to be present on site.” However, it is unclear whether SAF, Inc. continued to employ Complainant on other projects, subsequent to his removal from the Martin, Kentucky Housing project. 2022000447 5 We have found that when a staffing/contracting firm continues to employ complainant in another location after the Agency decided it no longer wanted his services that the Agency was not a joint employer. See Murphy v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120132014 (Sept. 17, 2013). Complainant appears to allege during EEO counseling and in his formal complaint that he was also removed from other projects at the direction of the Agency. However, the record does not contain any affidavits from SAF Inc. officials or Complainant addressing whether it has continued to employ Complainant on other projects, subsequent to his removal from the Martin, Kentucky Housing project. Based on the foregoing, we VACATE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter for a supplemental investigation in accordance with the Order below. ORDER Within sixty (60) calendar days from the date this decision is issued, the Agency ORDERED to take the following actions: 1. Conduct a supplemental investigation to obtain evidence consistent with this decision. The supplemental investigation shall include an affidavit from Complainant indicating whether SAF Inc. has continued to employ him on other projects, subsequent to his removal from the Martin, Kentucky Housing project. The supplemental investigation shall also include affidavits from relevant SAF, Inc. officials addressing whether it has continued to employ Complainant, on other projects subsequent to his removal from the Martin, Kentucky Housing project. These affidavits shall also address with specificity, if SAF Inc. has not continued to employ Complainant, the reason SAF Inc. has not continued to employ Complainant on other projects. The supplemental investigation shall also include affidavits from relevant Agency officials, such as ACO, indicating whether the Agency has directed SAF Inc. not to employ Complainant on other projects, in addition to the Martin, Kentucky Housing project. The supplemental investigation shall also include any other relevant affidavits and documentation. 2. The Agency shall issue a new final decision dismissing the complaint, with an appropriate analysis of the relevant facts and with appeal rights to the Commission, or a letter accepting Complainant’s complaint for investigation. 3. A copy of the supplemental investigation and new dismissal decision or letter of acceptance shall be provided to the Compliance Officer as set forth below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. 2022000447 6 Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2022000447 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2022000447 8 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatriz P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2022000463 Hearing No. 510-2019-00405X Agency No. P6-18-0096 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 5, 2021, 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 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Specialist, GS-1910-12, at the Agency’s Quality Assurance Division in Orlando, Florida. On November 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), color (black), disability, and in reprisal for prior protected EEO activity 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. 2022000463 2 1. On July 23, 2018, she became aware she was not selected for the position of Supervisory Quality Assurance Specialist in Orlando, Florida; and 2. On July 25, 2018, she became aware she was not selected for the position of Supervisory Quality Assurance Specialist in Palm Bay, Florida. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency.2 The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. The AJ found that, taking the facts as presented in the report of investigation and viewing the evidence in the light most favorable to Complainant, she failed to create a genuine issue of material fact to establish discrimination. Assuming for the sake of argument that Complainant could establish a prima facie case of discrimination, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ determined that Complainant was not selected for either position because her resume was not ranked in the top ten of applicants, based on a hiring panel’s scoring of resumes, to merit an interview. The panelists had ranked Complainant’s resume lower due to a lack of supervisory experience and rating lower in education. The AJ found that “[b]oth selectees had substantial years of supervisory experience. Further, while the Complainant had completed college level courses, she had not received a degree. Of the two selectees, one held an associate’s degree and the other held a master’s degree.” The two selectees also had years of experience as supervisors, compared to Complainant’s four months of supervisory experience listed on her resume. The AJ concluded that “Complainant relies on merely speculation, broad generalizations, and conclusions in support of her claim of discrimination and reprisal” and that “there is nothing to demonstrate that the Agency’s explanation for the selections was pretextual.” ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when she or he 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 factfinder could find in favor of the nonmoving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). 2 Before the AJ, Complainant sought to amend her complaint in order “to add a number of other issues related to harassment, leave, and work instructions.” The AJ denied Complainant’s Motion to Amend pursuant to 29 C.F.R. § 1614.106, finding that “the issues sought to be amended” were “not like or related to the issues in the instant complaint.” We find that the AJ properly denied the requested amendment. 2022000463 3 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 implementing 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 AJ’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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in her favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding no discrimination. 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). 2022000463 4 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. 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. 2022000463 5 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, Director Office of Federal Operations March 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Claudia A.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022000504 Agency No. 63-2014-00069 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated February 11, 2021, finding that it was in compliance with the terms of a September 7, 2016 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Field Representative, 0303, GS 4 at the Agency’s Denver Regional Office. On September 7, 2016, Complainant and the Agency entered into a settlement agreement to resolve several matters which had been pursued through the EEO complaint process. In pertinent part, the September 7, 2016 settlement agreement included the following provisions: Provision 1(c): Payment to Plaintiff. Within sixty (60) calendar days of the effective date of this agreement, Defendant [the Agency] will provide Plaintiff with a payment in the amount of twenty-two thousand five hundred U.S. dollars ($22,500). This payment will be made by Defendant sending a check made out to [Complainant]. This check will be sent to [provided address]. 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. 2022000504 2 The parties agree that the monetary amount included in this Paragraph represents all monies owed to Plaintiff and her representative regarding all claims between the parties (unless otherwise provided for herein). This payment will be categorized under Box 3 (Other Income) on the 1099 form that Defendant will issue to Plaintiff. Defendant will not withhold taxes from this payment . . . Provision 1(d): Plaintiff’s Voluntary Resignation. Concurrently with signing this Agreement, Plaintiff will complete, sign, and date Part E of the Standard Form 52 (attached hereto as Exhibit A), effecting her voluntary and irrevocable resignation from her employment with the U.S. Department of Commerce. The effective date of Plaintiff’s resignation will be the effective date of this Agreement. The reason provided on Part E of the Standard Form 52 (attached hereto as Exhibit A) for Plaintiff’s resignation will be, “voluntary resignation for personal reasons.” Defendant will process this resignation and place both the Standard Form 50 and 52 showing Plaintiff’s voluntary resignation in Plaintiff’s Official Personnel Folder (OPF). Provision 1(e): Plaintiff’s Future Employment References. Plaintiff will direct all prospective employer inquiries regarding Plaintiff’s employment history with the U.S. Department of Commerce to the Census Bureau’s Human Resources Call Center at [provided phone number]. Inquiring employers will be provided a neutral reference consisting of the dates of Plaintiff’s employment with the Agency, and the title, grade, series, and salary of the positions held by Plaintiff. By email on January 22, 2021, Complainant alleged breach of the September 7, 2016 settlement agreement. In its February 11, 2021 decision, the Agency found no breach of the September 7, 2016 decision. The Agency explained that all terms of the settlement agreement had been full executed on September 14, 2021. The Agency attached documentation in support of its finding of no breach. The instant appeal followed. ANALYSIS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. A settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep’t of Def., EEOC Request No. 05960032 (December 9, 1996). It is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract’s construction. Eggleston v. Dep’t of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement 2022000504 3 agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). The Agency properly determined no breach of the September 7, 2016 settlement agreement. Documentation in the record reflects that on October 3, 2016, the Agency issued Complainant a lump sum payment in the amount of $22,500 (taxes not withheld) via mailed check to Complainant’s address on record. Further documentation in the record includes Complainant’s SF-50 reflecting that Complainant’s resignation was effective September 14, 2016. Additionally, in the remarks section on the SF-50 identifies the reason for resignation as “personal reasons.” Finally, the Agency indicated that it had not received any reference requests from prospective employers regarding Complainant, and Complainant has not provided documentation to dispute the Agency’s assertion. While not altogether clear, it appears on appeal that Complainant is alleging that the Agency improperly reported her resignation date to the Office of Personnel Management (OPM) as occurring in 2013 rather than September 2016 as provided in the settlement agreement. As a result, she asserts she received an “underfunded disability annuity” for a hip injury she incurred while employed by the Agency. She also asserted that she does not believe the Agency properly funded her Thrift Savings Plan (TSP) account based on this incorrect resignation date. However, we find no evidence has been presented to support these assertions. Moreover, it appears that Complainant should have known at least about the TSP funding while she was employed by the Agency and before she signed the settlement agreement. We note the settlement agreement does not address TSP funding at all. In sum, we find no evidence of the Agency’s alleged breach of the settlement agreement. CONCLUSION The Agency’s final decision finding no breach of the September 7, 2016 settlement agreement is AFFIRMED. 2022000504 4 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). 2022000504 5 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeramy R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022000558 Agency No. 200306712021104677 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's November 2, 2021 dismissal of his complaint alleging unlawful 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as the Assistant Chief of Voluntary Services, GS-12, for the South Texas Veterans Health Care System, at the Audie Murphy VA Hospital in San Antonio, Texas. On September 16, 2021, Complainant filed a Formal EEO Complaint alleging discrimination by the Agency on the bases of race (Black), disability, and reprisal for prior protected EEO activity when, on January 12, 2021, he received written notification that he was not selected for the position of Chief of Voluntary Service, GS-13, Vacancy Announcement No. CAZM1097978221DMK (“VS Chief”). 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. 2022000558 2 On January 12, 2021, Complainant filed a Freedom of Information Act (“FOIA”) request pertaining to the selection process for the VS Chief position, including the qualifications, interview notes and interview scores for the selectee, and the alternate candidate (Complainant). The FOIA request also sought the race, gender, and age of the selectee and the members of the selection panel and extensive information on the gender, race, and age make-up of numerous positions within the service. On January 19, 2021, Complainant updated his request to also include information regarding the selectee’s disability status. On March 25, 2021, Complainant received a response, which contained blank pages and appeared incomplete, as it lacked the requested demographic data, and elements of the VS Chief selection process, including any criteria or guidance given to the selection panel members. Complainant appealed, with the Agency’s Office of General Counsel (“OGC”). On May 6, 2021, the OGC issued a final decision partially granting Complainant’s FOIA appeal, while still denying a significant portion of his request. Complainant states that decision demonstrated the Agency’s lack of transparency regarding the selection process for the VS Chief position and caused him to suspect that his nonselection was due to discrimination. Complainant initiated the instant EEO complaint on June 1, 2021.2 The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. §1614.107(a)(2), provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits in §1614.105. Under 29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action (e.g. nonselection), within 45 days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012) emphasis added. 2 Although the Agency identifies July 13, 2021, as the date of initial contact, Complainant provides a certified mail receipt establishing that he mistakenly contacted the EEO Office within the Agency’s Central Office in Washington, DC, on June 1, 2021, which, along with his subsequent efforts to further this complaint, is sufficient evidence of EEO contact. See Cristantiello v. Dep’t of the Army, EEOC Appeal No. 01992817 (Dec. 19, 2000) (EEO counselor contact is satisfied when a complainant contacts an agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process). 2022000558 3 Here, the alleged discriminatory event occurred on January 12, 2021, yet Complainant did not initiate EEO contact until June 1, 2021, well past the 45-day limitation period. Reasonable Suspicion On appeal, Complainant asserts that his complaint is timely because he did not reasonably suspect discrimination until May 6, 2021. However, we conclude that reasonable suspicion of discrimination existed no later than January 12, 2021. Complainant had already been verbally notified of the selectee’s identity, and, by virtue of his position, Complainant would have interacted professionally with the selectee long before May 6, 2021. See Swanigan v. United States Postal Serv., EEOC Appeal No. 0120033469 (Mar. 31, 2004) (where the alleged discriminatory event is nonselection, reasonable suspicion of discrimination is often not triggered until the complainant learns the identity of the selectee) citation omitted. On appeal, and in his formal EEO complaint, Complainant alleges that the selecting official, who he worked under for years, exhibited a “history of showing bias toward persons in my protected class” and provides examples predating his nonselection, such as a “very noticeable” dearth of non-white employees holding positions higher than GS-9 within in the selecting official’s unit. In this context, Complainant’s January 12 and 19, 2021 FOIA requests, given their content, essentially confirm that he suspected discrimination, at the time of his nonselection. While it may be relevant to his claim, the OGC’s May 6, 2021 FOIA Decision was not necessary to trigger reasonable suspicion of discrimination. Complainant’s claim is untimely pursuant to 29 C.F.R. § 1614.107(a)(2). Allegation of Being Misled Complainant also argues that an extension of the 45-day limitation period is warranted here because the Agency intentionally misled him. Specifically, Complainant reasons that he missed the deadline to contact an EEO counselor because he relied on the Chief of Human Resources (“HR”), who advised him to gather all of the facts before pursuing an investigation. We first note that the Commission has consistently held that that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). This holds true for complainants who delay contacting an EEO counselor until they have gathered supporting evidence through the FOIA system. Valencia L. v. R.R. Retirement Bd., EEOC Appeal No. 2019001765 (Sept. 18, 2019), Mitchell K. v. Dep’t of the Navy, EEOC Appeal No. 2019002360 (Apr. 30, 2019) (noting that the complainant initiated the FOIA request because he reasonably suspected discrimination). Complainant’s bald assertions that he relied on HR’s erroneous advice to his detriment, and that HR and other Agency officials failed to direct his complaint to the EEO process, are insufficient, on their own, to give rise to provide adequate justification to excuse Complainant’s untimely EEO contact. See Tianna M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2021004600 (Jan. 2022000558 4 11, 2022) citing Bixler v. Dep’t of the Air Force, EEOC Appeal No. 01941332 (March 25, 1994) (the mere assertion by appellant that an EEO Counselor told him that he could not file an EEO complaint is not enough to support such a contention). Additionally, Complainant does not dispute that he was placed on notice of the EEO time frames through training and agency postings located throughout the Medical Center. Ultimately, nothing in the record indicates that the Agency engaged in misconduct by intentionally inducing Complainant’s untimely EEO contact. The record reveals that Complainant initially experienced extreme confusion regarding initiating his EEO complaint. Once Complainant was in contact with the EEO Counselor, email correspondence reflects that the EEO Counselor was responsive and communicative. Notably, on October 6, 2021, the EEO Case Manager assigned to make a determination on Complainant’s complaint emailed him with an additional opportunity for clarification regarding the delayed EEO contact and his reprisal allegation before issuing the Agency’s decision. An extension of the limitation period to initiate EEO contact is not warranted. Additional Allegations of Discrimination & Reprisal On appeal, Complainant asserts that the Agency failed fully address his complaint, including his allegations of reprisal for his EEO activity associated with the instant complaint. The allegations include, but are not limited to, an ongoing hostile work environment perpetuated by the selecting official, with retaliatory and discriminatory actions continuing through September 2021. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) Additionally, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. §1614.101; Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Having thoroughly reviewed the record, the Commission concludes that the only claim that Complainant raised with the EEO Counselor for the instant complaint was his January 12, 2021 nonselection for the position of VS Chief. Complainant’s additional reprisal allegations are included in a document entitled “Official Complaint,” which he submitted with his Formal EEO Complaint after the conclusion of informal EEO Counseling. As these claims were not first raised with an EEO Counselor, they cannot be reviewed in this decision. 3 3 The Agency properly notified Complainant that the only claim raised during informal EEO Counseling for this complaint was the January 12, 2021 nonselection. The EEO Counselor’s Report, the VA Form 4939 (the Agency’s Formal EEO Complaint Form), and the Notice of Right to File (“NRTF”) all explain that the claims included on the Formal EEO Complaint must first be raised with an EEO Counselor. A September 16, 2021 email conversation between Complainant and his assigned EEO Counselor provides written confirmation from Complainant 2022000558 5 To the extent that he has not already done so,4 if Complainant wishes to pursue these new harassment and retaliation claims in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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. that he and the EEO Counselor verbally discussed the conclusion of the informal counseling stage, and that Complainant received and read the NRTF and the VA Form 4939. 4 Complainant discussed some of his new reprisal allegations in response to the EEO Case Manager’s October 6, 2021 email. 2022000558 6 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. 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. 2022000558 7 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 McKinley P.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2022000884 Agency Nos. 2021-0047-R05 and 2021-0056-R05 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 8, 2021, dismissing a formal complaint alleging unlawful 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 During the period at issue, Complainant worked as a Financial Analyst, GS-13, at the Agency’s Water Division, State and Tribal Program and Support Branch in Chicago, Illinois. On June 10, 2021 and August 2, 2021, Complainant filed two formal EEO complaint which the Agency consolidated. Complainant’s two complaints consisted of the following matters: Complaint 1 (Agency No. 2021-0056-R05): Whether the Agency subjected Complainant to unlawful retaliation for prior protected EEO activity when: 1. On or about May 6, 2021, Agency Counsel engaged in one-sided discussions with an EEOC Administrative Judge concerning EEOC Case No. 440-2021-00182X (EEO Complaint No. 2020-0066-R05); and 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. 2022000884 2 2. Agency Counsel requested the EEOC to dismiss the case from hearing before the Agency complied with the related provisions of the settlement agreement on EEO Complaint No. 2020-0066-R05. Complaint 2 (Agency No. 2021-0047-R05): Whether the Agency subjected Complainant to discrimination based on reprisal for prior protected EEO activity when: 1. Unidentified staff members from the Regional Comptroller Branch failed to advise Complainant to turn off his camera for the virtual conference calls on April 2 and 20, 2021; 2. Unidentified Agency officials may have spread “demeaning and/or disparaging” information about Complainant to other employees; and 3. From April 26, 2021 to May 27, 2021, EEO officials improperly processed Complainant’s informal complaint on the subject EEO complaint. In its November 8, 2021 final decision, the Agency dismissed the formal complaints on several procedural grounds. First, the Agency dismissed Complaint 1, pursuant to 29 C.F.R. § 1614.107(a)(8), finding that the complaint alleges dissatisfaction with the processing of a prior EEO complaint. Additionally, the Agency dismissed Complaint 1, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Second, the Agency dismissed Complaint 2, claims 1 and 2, pursuant to 29 C.F.R. §1614.107(a)(1), for failure to state a claim. The Agency determined that Complainant was not an aggrieved individual. Finally, the Agency determined that Complaint 2, claim 3, concerned dissatisfaction with the processing of the instant complaint. The Agency asserted that an inquiry was conducted by its Office of Civil Rights found that the quality of the EEO counseling process neither had an adverse impact upon the processing of Complainant’s complaint nor had an adverse impact upon Complainant’s ability to participate in the EEO process. The instant complaint followed. ANALYSIS AND FINDINGS Dissatisfaction with EEO Process (Complaint 1) The regulation at 29 C.F.R. § 1614.107(a)(8) states that an agency shall dismiss a formal complaint that alleges dissatisfaction with processing of a previously filed complaint. Here, Complainant is alleging that the Agency engaged in inappropriate conduct during the EEO process in his prior complaint, Complaint No. 2020-0066-R05. Therefore, we find that the Agency properly dismissed Complaint 1. Because we affirmed the Agency’s dismissal of this complaint on this procedural ground, we need not address the Agency’s alternative grounds for dismissal. 2022000884 3 Failure to State a Claim (Complaint 2, claims 1 and 2) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. Complainant asserts that management failed to instruct him to turn his camera off during two Microsoft Teams (virtual) meetings, and consequently, Complainant was the only non-management participant with his camera on. However, aside from embarrassment, Complainant has not indicated how he was harmed by having his camera on during these meetings. Additionally, Complainant asserts that unidentified management officials made disparaging comments about him. However, Complainant failed to indicate the nature of these comments or how or if these comments negatively impacted his employment. As a result, the nature of Complainant’s claims is of a type that typically arises out of workplace communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even if proven to be true and viewed in a light most favorable to Complainant, the matters raised would not indicate that he has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment in violation of Title VII. See Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Additionally, there is no indication that these allegations would reasonably deter an employee from pursing the EEO process. Therefore, the Agency properly dismissed these claims for failure to state a claim. Dissatisfaction with EEO Process (Complaint 2, claim 3) Again, allegations of dissatisfaction do not give rise to an independent claim of discrimination or unlawful retaliation. We note on appeal, Complainant does not dispute the Agency’s determination in its final decision that the Office of Civil Rights found that the quality of the EEO counseling, in the instant complaint, did not adversely impact the processing of Complainant’s complaint, and as a result, Complainant was afforded the opportunity participate in the EEO process. Therefore, we need not address this matter further in our decision. CONCLUSION The Agency’s final decision dismissing the formal complaints for the procedural grounds discussed above is AFFIRMED. 2022000884 4 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). 2022000884 5 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyle P.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Request No. 2022000890 Appeal No. 2020004359 Hearing No. 570-2019-01167X Agency No. BOP-2018-0981 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020004359 (November 8, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant was an applicant for a Chaplain position at the United States Penitentiary in Hazelton, West Virginia. Complainant filed a formal complaint, claiming discrimination based on physical disability. Complainant alleged that the hiring process was suspended due to his disabilities. 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. 2022000890 2 After an investigation, Complainant requested a hearing. The assigned EEOC Administrative Judge (AJ) issued a decision by summary judgment concluding the evidence of record did not establish any discrimination. In so doing, the AJ noted that, as part of the application process, Complainant submitted his VA Disability Rating Decision Letters and completed a physical examination at the Agency’s facility and the Agency’s Medical Officer determined that, based on Complainant’s medical history, the results of the physical examination, and information in Complainant’s VA Disability Rating Decision Letter, Complainant would not be able to perform the essential functions of federal law enforcement officer positions, including prison Chaplain, and he was, therefore, not medically qualified for the position. The AJ found that the Agency demonstrated that the fitness-for-duty medical evaluation was job-related and consistent with business necessity and Complainant was unable to demonstrate evidence of a disputed issue of material fact necessitating a hearing. Thereafter, the Agency issued a final order implementing the AJ’s finding of no discrimination. Complainant appealed. In EEOC Appeal No. 2020004359, the Commission affirmed the Agency’s final order implementing the AJ’s finding of no discrimination. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. We note that during the original appeal from the Agency’s final order, Complainant presented a number of arguments, many of which have been replicated in the instant request. We emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020004359 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 2022000890 3 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. 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donovan T.,1 Complainant, v. Janet Yellen Secretary, Department of the Treasury, Agency. Request No. 2022000916 Appeal No. 2021003431 Agency No. IRS-20-0285-F Hearing No. 471-2020-00116X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003431 (November 8, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant worked for the Agency as a Computer Engineer in Detroit, Michigan. On May 2, 2020, Complainant filed a formal complaint, claiming discrimination based on national origin, religion, and in reprisal for prior protected activity. Specifically, Complainant clamed that he was denied participation in the Presidential Management Council Interagency Rotational Development Program for fiscal year 2020. 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 2022000916 After an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The assigned AJ issued a summary judgment decision finding no discrimination. Thereafter, the Agency issued a final order adopting the AJ’s summary judgment decision. On appeal, in EEOC Appeal No. 2021003431, the Commission affirmed the Agency’s final order adopting the AJ’s decision. In the instant request for reconsideration, Complainant has raised arguments which either were raised, or could have been raised below. However, nothing he has submitted supports a determination that the prior decision affirming the Agency final order was in error. A request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2021003431 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 3 2022000916 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cecile T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001004 Agency No. 4F-913-0002-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 15, 2021, dismissing a formal complaint alleging unlawful 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier Assistant, Grade Q-01, at the Agency’s Post Office in Lancaster, California. On October 21, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (on-the-job injury) and in reprisal for prior protected activity. On November 15, 2021, the Agency issued the instant final decision dismissing Complainant’s claims for untimely filing of the formal complaint pursuant to 29 C.F.R. §§ 1614.106(b) and 1614.107(a)(2). 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 2021001004 The Agency stated that its track and confirm records showed that the notice of right to file a formal EEO complaint (notice) had been delivered to Complainant on October 4, 2021. However, Complainant’s formal EEO complaint was not received by the Agency until October 21, 2021, which was seventeen days after the Agency’s track and confirm indicated that the notice had been receive at Complainant’s residence. The instant appeal followed. On appeal, Complainant did not dispute that the Agency delivered the notice of right to file on October 4, 2021. However, Complainant explained that the Agency’s notice had been delivered to a neighborhood-shared or “cluster” mailbox. Complainant stated that she did not actually retrieve the notice from the cluster mailbox until October 18, 2021. According to Complainant, upon realizing that her formal complaint was otherwise due the following day, she called the EEO Counselor who told her not to worry because the applicable fifteen-day time limit would begin on the date she received the notice (October 18, 2021). Additionally, Complainant maintained that she had already informed the Agency of her intent to move forward with a formal EEO complaint through earlier conversations with the Agency. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that the Agency shall dismiss a complaint for failure to comply with the applicable time limits. EEOC Regulation 29 § C.F.R. 1614.106(b) requires a complainant to file a formal complaint within fifteen days of receiving notice of the right to do so. Unless stated otherwise, EEOC’s time limits are in calendar days. 29 C.F.R. § 1614.604(a). To be deemed timely filed, a document must be received or postmarked before the time limit expires. 29 C.F.R. § 1614.604(b). We have consistently held that the Agency bears the burden to prove its final dismissal decisions. Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). Especially in a procedural dismissal, the Agency always must present sufficient evidence to support its determination of untimeliness. Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994). Here, the Agency has met that burden. The record discloses that Complainant received the notice of right to file a formal complaint on October 4, 2021. The Agency provided documentary evidence that the notice was delivered to the mailbox at Complainant’s address of record on October 4, 2021, which was a Monday that was not a holiday. The Agency’s notice stated that Complainant had the right to file a formal complaint within 15 calendar days of the date she received the notice. Furthermore, the Agency’s final interview letter further stated that Complainant had 15 days from the date of receipt of the final interview letter to file a timely formal complaint and her complaint was subject to dismissal in accordance with if not filed within the 15-day time limit. Complainant’s formal complaint was sent in an envelope that was postmarked October 21, 2021, which was two days after the 15-day time limit elapsed on October 19, 2021. 3 2021001004 On appeal, we are not persuaded by Complainant’s explanation that she failed to check her mailbox for two weeks. Moreover, Complainant averred that she knew of her filing deadline one-day before it expired and yet failed to file her complaint. Although Complainant asserted that she that received what in essence was a verbal extension from the EEO Counselor, apart from her own statement, Complainant lacks adequate evidence to prove that the EEO Counselor assured her that the time period started after October 4, 2021. Similarly, the record is devoid of documentary support for Complainant’s argument that she had expressed her intention to file the formal Complainant on some date before her deadline had expired. Under these circumstances, we must find that Complainant’s explanation for her late formal complaint does not merit waiver, estoppel or tolling of the time limit for filing her formal complaint. Upon review the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. Because the Agency properly dismissed the formal complaint in its entirety for being untimely filed, we decline to address the Agency’s alternate dismissal grounds for one of the two subject claims. CONCLUSION The Agency's final decision dismissing the formal complaint for being un timely filed is AFFIRMED. 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). 4 2021001004 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. 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. 5 2021001004 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 23, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mozella M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022001046 Appeal No. 2021004139 Agency No. 2003-0580-2021101296 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Mozella M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2021004139 (Nov. 10, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). Complainant, a GS-7 Patient Support Assistant at the Agency's Houston VA Medical Center in Houston, Texas, filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability and in reprisal for prior protected EEO activity when: 1. From October 16, 2020 through March 2021, Complainant's PIV credential badge was linked to all of her personal devices and external devices (i.e. an XBox); she was given illegal access to different computer software programs (i.e. Remote access to Department of Defense portal); given 365 Microsoft software, connected to Knox 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. 2022001046 2 Version Workspace Account, Devo Tool Microsoft Application; assigned the vaazuregov portal; equipment ordered under her name; her PIV credentials shared with another employee; work email and VHAHOULISTES account disabled; government email address used as YouTube Account and Gmail and Google Account; Official Personnel Folder accessed, mobile device-IPAD linked her personal email address, and a second work profile of her had been created; 2. Ongoing from November 2020, the Agency monitored all of Complainant's personal devices and her brother's television via her VA ID PIV badge; 3. On December 2, 2020, Complainant's browser linked other devices and a shared library to her computer, and there was unauthorized access to her computer; 4. On January 18, 2021, 68 employees logged onto Complainant's PIV badge illegally; and 5. On February 8, 2021, and on December 23, 2020, Complainant's status was listed as Deployment Status instead of being a full-time employee. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. In the appellate decision, the Commission affirmed the Agency’s dismissal decision. The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Complainant has not presented any persuasive evidence to support reconsideration of the Commission's decision. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2021004139 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 2022001046 3 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Blake H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Request No. 2022001053 Appeal No. 2021003579 Agency No. 1C-281-0009-21 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Blake H. v. U.S. Postal Serv., EEOC Appeal No. 2021003579 (Nov. 18, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). Complainant, a Mail Handler at the Agency's Logistics and Distribution Center in Charlotte, North Carolina, filed a formal EEO complaint alleging the Agency subjected him to reprisal for prior protected EEO activity as evidenced by the following incidents: 1. On or around February 2, 3, and 10, 2021, a co-worker tried to verbally intimidate Complainant, and subsequently, on March 25, 2021, the co-worker and a supervisor blocked an aisle he was in, and may have been attempting to intimidate him; 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. 2022001053 2 2. On or around March 2 and 4, 2021, co-workers were permitted “fringe benefits” of longer breaks and clocking in and out early; and 3. On or around March 5 and 6, 2021, a supervisor asked Complainant about his restrictions and instructed him to provide her a copy. The Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. In the appellate decision, the Commission determined that the formal complaint and related EEO Counselor's report, as well as Complainant’s statement on appeal, reflected that Complainant was alleging an ongoing pattern of retaliatory harassment that included, but was not limited to, the incidents described by the Agency's in its dismissal decision. For example, Complainant had also alleged that he was subjected to ongoing heightened scrutiny by his supervisor; and after receiving a COVID-19 positive test result, his supervisor refused to let him return to work “even after I had faxed all appropriate documentation. [Supervisor] stated I would have to use five more days of my sick leave; even after the Postal Nurse gave approval.” As a result, the Commission reversed the Agency’s dismissal decision and remanded the matter for further processing. The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Complainant has not presented any persuasive evidence to support reconsideration of the Commission's decision. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2021003579 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER (E0618) The Agency is ordered to process the remanded claim (retaliatory harassment) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. 2022001053 3 As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency or filed your appeal with the Commission. 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. 2022001053 4 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. 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 22, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lydia W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022001056 Agency No. 2003-0580-2021104770 DISMISSAL OF APPEAL By Notice of Appeal dated December 10, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s September 24, 2021 final decision concerning an EEO complaint alleging unlawful 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. On appeal, Complainant acknowledges in the Form 573 Appeal Form, that she received the Agency’s final decision on September 24, 2021,2 which dismissed her complaint, pursuant to 29 CFR §1614.107(a)(1), for failure to state a claim. The Agency’s final decision expressly advised Complainant that she had thirty calendar days after receipt to timely file an appeal. To be considered timely, Complainant had to file her appeal, at the latest, on October 25, 2021. The Form 573 Appeal which Complainant prepared is dated under her signature, as “12/10/2021.” Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal. 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 The record shows the final decision was sent to Complainant and her designated union representative via their email addresses of record on September 24, 2021. 2 2022001056 Accordingly, Complainant's appeal is DISMISSED as untimely filed. See 29 C.F.R. § 1614.403(c). 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. 3 2022001056 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. 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 21, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherill S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 2022001098 Hearing No. 420-2021-00209X Agency No. RD-2021-00136 DECISION 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 November 9, 2021, final order 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 During the period at issue, Complainant worked for the Agency as an Area Specialist Loan Officer, GS-11, in Indianola, Mississippi. On February 25, 2021, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African American) when, on December 10, 2020, she learned she was not selected for a GS-11650-12, Loan Specialist (Realty) position in Jacksonville, Mississippi advertised under Vacancy Announcement No. MP-MS-1090762-2020- CM. 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. 2022001098 2 After an 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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 24, 2021 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on November 9, 2021. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant submits documents in which she responded to the Agency’s Motion for a Decision Without a Hearing and that pertain to her professional accomplishments. In response, the Agency requests that we affirm its final order implementing the AJ’s decision without a hearing finding no discrimination. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. A claim of disparate treatment 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 must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco 2022001098 3 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. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s non- selection. The record reflects that a Human Resources Specialist (HR1) compiled a certificate of eligibles for the best qualified list. The best qualified list contained candidates who scored an 85 or above. Report of Investigation (ROI) at 150. The certificate of eligibles contained five candidates, including Complainant. ROI at 134. Complainant received a score of 95, while the selectee received a score of 99. Id. The record contains a declaration under penalty of perjury from the recommending official (RO) (Caucasian, Arabic). Therein, RO asserts that he did not conduct interviews for the subject position, and that he knew four of the five candidates on the certificate of eligibles, including Complainant. ROI at 126. The RO stated that he reviewed the human resources ranking list, the candidates’ resumes and work experience, and their performance ratings. ROI at 126. The RO asserted that the selectee had ranked higher on the human resources list and had received a higher performance rating for 2018-2019.2 Id. The RO stated that the selectee was the lead SFH Loan Specialist in the Rankin County Field Office and was responsible for overseeing the work of loan specialists and technicians and this experience was highly relevant for the position at issue. Agency’s Motion for Summary Judgment (MSJ) Exhibit (Ex.) A at 2. The record also contains a declaration under penalty of perjury form the selecting official (SO) for the position at issue. The SO said he had only been with Rural Development for three months at the time of the selection at issue and relied on the RO’s recommendation. 2 The record reflects that for the 2018-2019 performance cycle, Complainant had received a “Superior” rating while the selectee received a higher rating of “Outstanding” for the same period. MSJ Ex. D, Ex. F. 2022001098 4 Specifically, the SO asserted that he briefly reviewed the resumes, performance appraisals, and human resources ratings of the candidates and concurred with RO’s recommendation. MSJ Ex. B at 2. Complainant has not established that the Agency’s articulated reason for her non-selection was pretext for discrimination. While Complainant asserts that she received two emails within seconds of each other. One email informed her that she was found eligible for the position and another email informed her that she was not selected for the position, HR1, in her declaration, asserted that she did not send out the emails in a timely manner due to her workload. Complainant also asserts, in an effort to establish pretext, that the selectee in 2019 was placed in a Workflow Coordinator position which provided her with more experience for the position at issue and that African American employees were not offered this Workflow Coordinator position. RO, in a declaration, asserts that in 2019, he was short-staffed and needed help in developing an electronic tracking system for SFH loans statewide, he knew the selectee had created such a tracking system in the Rankin County Field Office so he asked for the selectee’s help as a Workflow Coordinator. The Workflow Coordinator role was not a promotion but was a collateral duty while the selectee continued performing her primary duties as a Loan Specialist. MSJ Ex. A. at 3. Based on the foregoing, we do not find that Complainant established that the Agency’s articulated reason was pretext for discrimination. CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. 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). 2022001098 5 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. 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. 2022001098 6 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sandra S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022001178 Agency No. 4G-370-0075-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 22, 2021, dismissing her complaint alleging unlawful 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 During the relevant time, Complainant worked for the Agency as a Rural Carrier Associate in Jackson, Tennessee. On November 5, 2021, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On November 9, 2021, Complainant filed a formal complaint. Complainant claimed that the Agency subjected him to discrimination based on race (African American) and in reprisal for prior protected EEO activity when: 1. On March 7, 2020, a co-worker made racial slurs and management did nothing; 2. On March 18, 2020, the Postmaster told Complainant that she was fired; and 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. 2022001178 2 3. On or around March 20, 2021, Complainant did not receive a paycheck for hours worked. In its December 9, 2021 decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107 (a)(2). Specifically, the Agency determined that Complainant's initial EEO contact on November 5, 2021, was beyond the 45-day limitation period. In the appeal that followed the Agency's decision, Complainant claimed that she was not aware of the time limitations for seeking EEO counseling. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, it is undisputed that the alleged discriminatory events occurred on March 7, 2020, March 18, 2020 and March 20, 2020. However, Complainant did not initiate contact with an EEO counselor until November 5, 2021, beyond the forty-five (45) day limitation period regarding the subject claims. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish, among other things, that Complainant was not aware of the time limit. In this case, Complainant has claimed her delay should be excused because she was unaware of the 45-day limitation period. We note that the Agency provided no documentation reflecting Complainant's actual or constructive knowledge of the 45-day limitation period. The Agency stated in its final decision that there was an affidavit attesting to the fact that an EEO poster containing relevant EEO Counselor contact information was appropriately displayed at Complainant's workplace. However, the record contains no such affidavit or other supporting documentation. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No 05920506 (Aug. 25, 1992). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). In the instant matter, the Agency has not met its burden. 2022001178 3 CONCLUSION We REVERSE the Agency's final decision dismissing the formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 2022001178 4 If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022001178 5 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 24, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emma B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001573 Agency No. 4B-070-0264-19 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 3, 2020, dismissing her complaint of unlawful 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant, Q-01, at the Agency’s facility in West Caldwell, New Jersey. On January 7, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), color (Black), and disability (left ankle) when: 1. Beginning on June 5, 2019, and ongoing, she was consistently not paid correctly. 2. On August 7, 2019, she was placed on Emergency Placement. 3. On August 12, 2019, she was issued a Notice of Removal for [Absence Without 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. 2022001573 2 Leave] AWOL / Failure to Work in a Safe Manner.2 4. On September 4, 2019, she was given a street observation and management did not provide her with a copy of the PS Form 4588. 5. On September 13, 2019, management conducted a meeting to discuss her work ethics. 6. On September 13, 2019, she was issued a Notice of Removal for Failure to Work in a Safe Manner.3 The Agency dismissed the complaint as untimely filed, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that Complainant received the Notice of Right to File a Formal Complaint (“Notice”) on December 21, 2019, but did not file her formal complaint until January 7, 2020, which was 17 days after she received the Notice and outside of the applicable limit. The Agency acknowledged that Complainant submitted a statement saying that she had been seriously ill since December 9, 2019 but found that she submitted no evidence that she was unable to comply with the applicable time limits or otherwise to excuse her untimely filing. Neither Complainant nor the Agency submits arguments on appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a complaint with an appropriate agency official within fifteen (15) calendar days after receipt of the notice of the right to file a formal complaint. 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with § 1614.604(c). In addition, when a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). In this case, and by Complainant’s own admission, her formal complaint was filed late. We find that it was due on or by January 6, 2020. After careful review of the record, we further find that Complainant failed to present a justifiable reason for waiving the filing deadline. 2 According to the record, the Notice of Removal dated August 12, 2019, was modified to a seven-day suspension on August 29, 2019. 3 According to the record, the Notice of Removal dated September 13, 2019, was modified to an Official Discussion on October 22, 2019. 2022001573 3 While Complainant asserted in her statement that she was seriously ill and thus unable to file on time, she presented no evidence, such as a physician’s statement, which would support her assertion that she was so incapacitated by her condition that she was unable to timely file her formal complaint. CONCLUSION For the foregoing reasons, the Agency’s final decision dismissing the complaint is AFFIRMED. 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). 2022001573 4 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. 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 22, 2022 Date