0120131898
08-14-2015
Complainant1 v. Loretta E. Lynch, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant1
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120131898
Hearing No. 443-11-00069X
Agency No. USA-2010-00318
DECISION
On April 1, 2013, Complainant filed an appeal from the Agency's February 14, 2013, 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. On appeal, Complainant states that she received the final order on March 9, 2013. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence of record supports the Equal Employment Opportunity Commission Administrative Judge's decision that Complainant did not prove that the Agency discriminated against her (1) on the bases of sex and reprisal when it did not promote her after she reported an incident of alleged sexual harassment and (2) on the basis of reprisal when she was denied the opportunity to correct an error on her application for a Paralegal Specialist position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Administrative Services Assistant in the U.S. Attorney's Office in Sioux Falls, South Dakota. On May 26, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her:
1. on the bases of sex (female) and reprisal for prior protected EEO activity when, on February 24, 2010, it did not promote her after she reported an incident of alleged sexual harassment and
2. on the basis of reprisal when she was denied the opportunity to correct an error on her application, which rendered her ineligible for the position of Paralegal Specialist, GS-0950-7/09.
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, which the AJ held on November 16, 2011; August 18, 2011; and January 25, 2012. On January 2, 2013, the AJ issued a decision in favor of the Agency. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged.
Complainant began working at the Agency as a GS-7 Civil Legal Assistant in October 2007. The Chief of the Civil Division (S1), who selected Complainant for the position, was Complainant's first-level supervisor. Early in 2008, S1 asked Complainant if she would be interested in a position in the Administrative Officer (AO) Intern Program. S1 recommended Complainant for the position, and the U.S. Attorney (USA-1) approved of Complainant's participation in the Program.
Administrative Officer Internship
On April 8, 2008, Complainant signed a Federal Career Intern Program (FCIP) Agreement that placed her in an Administrative Services Specialist, GS-301-9, position. The target position was a GS-341-13 Administrative Officer position, and the internship would expire on April 12, 2010. The Administrative Officer for the District of Idaho served as Complainant's mentor, and the Criminal Chief/Acting First Assistant U.S. Attorney (S2) became Complainant's first-level supervisor. Complainant met with S2 on June 2 and September 25, 2008, to discuss her performance and received positive feedback.
In Fall 2008, Complainant attended sexual-harassment training at a conference for the three branches of the South Dakota U.S. Attorney's Office. Complainant testified that some participants made questionable comments of a sexual nature during the training. She also testified that she spoke to S1 about the remarks. According to Complainant, S1 replied, "That's why I'm no longer the sexual harassment coordinator. I finished my presentation one year at the annual retreat and found two AUSA's viewing porn shortly thereafter." S1 testified that she stopped being the sexual harassment coordinator after she became a manager because the coordinator position is a non-management position. She stated that Agency officials believed that it would be easier for employees to bring their complaints to someone who was not a supervisor.
S2, who became the First Assistant U.S. Attorney in March 2009, gave Complainant her 2008 performance appraisal on March 5, 2009. Complainant received an overall rating of "Satisfactory." She received a rating of "Outstanding" in two performance elements: "Consult with United States Attorney (USA) and Senior Staff" and "Completes developmental assignment under FCIP Hiring Authority." In June 2009, Complainant received a $3,000 cash award for "Sustained Superior Performance."
Complainant successfully completed the Individual Development Plan (IDP) for the first year of her internship and was promoted to a GS-11 Administrative Services Specialist position on April 12, 2009. She met with S2 in April 2009 to discuss the IDP for her second year and in June 2009 to discuss her performance. Both discussions were positive, and Complainant did not receive any negative feedback.
In June 2009, the contracting officer left and the Administrative Division was short staffed. Also in June 2009, the Agency's Evaluation Review Staff (EARS) conducted the financial management portion of the EARS evaluation of the office. Complainant met all of the deadlines for that portion of the evaluation. On July 14, 2009, with S2's permission, Complainant requested a one-month extension for submitting pre-evaluation questionnaires for the September 2009 management and administrative portion of the EARS evaluation. The Lead Administrative Evaluator (LEA) on the team granted the request.
At some point in July 2009, the Branch Chief (BC) of the Pierre Branch Office complained to Complainant about furniture that she had ordered for the office. Complainant testified that she did not appreciate the way that BC spoke to her. She and BC told S2 about their frustrations with each other.
Complainant assisted with the planning of the annual retreat in August 2009. S2 testified that Complainant was not present when he arrived on the first day of the retreat, that "the noon meal wasn't set up," and that he had to "scramble to get some things done."
USA-1 left the office on September 3, 2009, and a new U.S. Attorney (USA-2) began on October 16, 2009. An Assistant U.S. Attorney from the Branch Office became the new First Assistant U.S. Attorney (S3) on November 8, 2009. S3 became Complainant's first-level supervisor.
There were other staffing changes as part of the transition. On September 1, 2009, S1, S2, and Complainant informed the Civil Legal Assistant (CW1) that she would be moved to the Administrative Division. S1 also mentioned the possibility of CW1 performing Financial Litigation Unit (FLU) duties.
S1 again discussed FLU duties with CW1 later in the day, after an FLU employee announced her intention to retire. When Complainant passed by S1's office, S1 invited her to join the conversation with CW1 and the retiring employee. Complainant became visibly upset and told S1 that she thought that the matter should be discussed with management. Shortly after that, Complainant met with S1 and S2. Complainant became emotional and cried. She stated that she was overwhelmed because of the workload and the loss of the contracting officer. S1 asserted that Complainant accused S1 of plotting against her and offering the FLU job to CW1. S2 testified that Complainant accused S1 of betraying her and encouraging an Administrative Division staffer to take a position in FLU. Complainant denied accusing S1 of plotting against her.
In preparation for the September 2009 EARS evaluation, S2 wrote notes concerning what he wanted to tell the EARS team about Complainant. The handwritten, undated notes list "AO Issues" such as "EARS Admin surveys not done in a timely manner," "not here when needed," "lack of commitment to mission of office," "sick important days," "paranoid that others are undermining her," and "doesn't have temperament or maturity to handle difficult position." At the hearing on Complainant's complaint, S2 testified that Complainant frequently would call in sick on days when important things needed to be done. He also testified that Complainant was not committed to the office's primary mission of litigation, she focused on what she was going to get out of the job rather than on the office's mission, and she complained that she was not receiving support when in reality it was the AO's job to support the office.
During the EARS evaluation, LEA met with Complainant and with S1 and S2. LEA testified that S2 expressed concern about Complainant's lack of maturity and interactions with supervisors. He noted that S2 referred to an incident in a branch office and thought that it involved furniture. LEA testified, "I don't know if I can attribute it to this particular incident, but [S2] did say something about yelling and acting unprofessional, things like that." He also testified that he informed Complainant of S2's concerns. Complainant testified that she told LEA that the office's Administrative Division was short staffed and that management did not fully appreciate the difficulties she was experiencing.
In a September 21, 2009, Memorandum of Significant Observations, the EARS evaluation team stated that "[t]he AO Intern has worked diligently to complete all of the requirements of her Individual Development Plan and has worked closely with her assigned mentor, who advised the evaluation team that she is very impressed with the AO's progress." The team noted that, although the support staff made "very positive" comments about Complainant, "this was not the case with the AUSA supervisory personnel, all of whom questioned her ability to act in a professional manner in stressful situations."
S2 gave Complainant her mid-year performance review on September 24, 2009. The document did not list any negative performance concerns. Complainant testified that S2 told her that she was doing 99 percent of the job right, stated that she "just needed to want it more," and discussed the EARS evaluation in terms of how they were going to come together and finish the internship. S2 testified that he spoke to Complainant about her ability to perform when the office was under pressure, told her that she performed fine in many respects but would be out of the office or would get into emotional arguments with management when there was pressure, and explained that the office needed to be able to count on her in pressure situations.
0n December 9, 2009, S3 approved Complainant's request to have two employees from the Pierre and Rapid City Branch Offices come to Sioux Falls for training. During a subsequent management meeting, BC was abrasive toward Complainant and accused her of not getting the proper approval for his staff to travel for the training. Complainant asserted that S3 should have told BC that he had approved the training request. She argued that his failure to do so was an example of how S3 allowed friction to occur between Complainant and BC.
In November or December 2009, the office was preparing for a February 2010 Native American Listening Conference. Complainant has asserted that S3 repeatedly made her leave a conference to respond to his e-mails and became short with her if he did not like an answer that she gave him. She met with USA-2 on January 8, 2010. According to Complainant, she told USA-2 that S3 told her that she could no longer speak on conference calls, that she worked very hard to provide correct answers to S3, and that S3 became upset with her when her answers were adverse to S3's wishes. USA-2 testified that Complainant told him that S3 had unrealistic expectations and she did not know if she could continue to work with S3.
In January 2010, S1 was reviewing the backgrounds of candidates for a Systems Manager position in the office. Complainant testified that S1 told her that it would be difficult for Complainant to supervise one of the candidates because there had been friction between the candidate and a previous female supervisor. S1 testified that, because of some comments in the candidate's background check, she told Complainant that it would be interesting to see how he responded to a female supervisor.
On January 26, 2010, Complainant visited the Pierre Branch Office and asked an Assistant U.S. Attorney (AUSA-1) how he liked his new desk. Complainant testified that AUSA-1 replied, "Well, you know, it's supposed to be six inches longer. You girls are supposed to like that kind of thing." He made the comment in front of Complainant and two female legal assistants. Complainant testified that she was concerned about reporting the comment to S3 because S3 had worked with AUSA-1, had referred to a previous AUSA as "being hot," and had said that the Agency was a "sexier agency." She reported the comment to the AUSA who was the point of contact for sexual-harassment complaints on January 27 and to S3 on January 28, 2010. S3 reported the incident to S1 and S2, and S1 and S3 met with Complainant and informed her of her right to file an EEO complaint. S3 counseled AUSA-1 about the inappropriate remark and the Agency's zero-tolerance policy. He instructed AUSA-1 to apologize to Complainant, AUSA-1 apologized, and Complainant accepted the apology. USA-2, who learned of the matter from S3, put a reference about the comment in AUSA-1's file.
Complainant sent S3 a February 5, 2010, e-mail requesting permission to attend training in April 2010. She stated that the Executive Office for the United States Attorneys (EOUSA) would pay her expenses. S3 approved the request on February 8, 2010.
USA-2 and S3 attested that they needed to decide whether to make Complainant the permanent AO by April 2010, when her internship ended. According to USA-2, he wanted to reach a decision on the matter before spending money for two training requests that Complainant submitted. On February 9, 2010, S3 spoke with Complainant's mentor. The mentor testified that she told S3 that Complainant was progressing nicely. She also testified that she had not observed Complainant interacting with staff in the office and was surprised when S3 told her that there had been issues involving Complainant's interpersonal skills. S3 testified that the mentor told him that Complainant had learned a remarkable amount of information in a relatively short period and that the mentor also said that Complainant was immature. His handwritten notes of the conversation contain several notations, including "amazed by what she has learned" and "maturity--lacks."
During a February 16, 2010, meeting, USA-2, S1, S3, and the Appellate Chief discussed Complainant's performance. According to USA-2, S1 expressed concern about Complainant's ability to interact with management, S3 thought that Complainant had not been successful and should not continue in the AO Intern Program, and the Appellate Chief was not confident that the situation would improve if Complainant became the permanent AO. S2 testified that he spoke with USA-2 about Complainant many times and that he expressed concerns about Complainant's performance.
S2 and S3 met with Complainant on February 24, 2010, and told her that she would not be promoted to the AO position. By letter dated March 10, 2010, S3 notified Complainant that he was terminating her appointment to the position of Administrative Services Specialist. He stated, "Although you have made steady progress towards meeting the IDP's training requirements, we have determined that your performance and administrative skills have not progressed sufficiently to satisfactorily complete this internship under the FCIP." He also stated that, pursuant to the FCIP Agreement, Complainant was eligible for placement in a position at a pay or grade no lower than the position she left to participate in the internship.
The Agency converted Complainant from the Administrative Services Specialist position to a GS-7, Step 10, Legal Assistant position effective March 17, 2010. It subsequently chose a female to be the permanent Administrative Officer.
USA-2 testified that he made the decision to remove Complainant from the internship based on input that he received from the management team. He noted that S2 had concerns about Complainant's performance and ability to work with management and that S1, S3, and BC had conflicts with Complainant. He also noted that the EARS evaluation addressed Complainant's need to secure the confidence of management and that relationships had deteriorated.
Complainant stated that she was not told that she was failing the Intern Program prior to February 24, 2010. S3 acknowledged that he never told Complainant that she was failing the Program and never gave Complainant any documentation concerning performance deficiencies. USA-1 testified that he never told Complainant that there were performance issues that would prevent her from completing the internship and that he had no specific recollection of Complainant not getting along with others.
Complainant did not receive a performance appraisal for 2009. She was the only employee who did not receive one. S3 testified that he considered the legal advice from the Agency's Office of General Counsel when he decided not to give Complainant a performance appraisal. S2 testified that he started to work on Complainant's 2009 performance appraisal in December 2009 or January or February 2010. He rated Complainant "successful" in Critical Element 4 (Federal Career Intern Program Assignments) and Performance Element 5 (Completes Developmental Assignments under the Federal Career Intern Program). S2 did not complete the ratings for Critical Elements 1 (District Administrative Operations), 2 (Advises United States Attorney and Senior Staff), and 3 (Professional Relations). He did not complete the appraisal because the Office of General Counsel advised him not to do so.
At some point after February 24, 2010, Complainant found an undated, unsigned document entitled "Additional Justification for [Complainant] Successful Rating" in her personnel file. The document stated, "Outstanding on element 2. Consult United States Attorney (USA) and Senior Staff. [Complainant] continues to perform this element in an outstanding manner." In addition, the document referred to Complainant's "outstanding efforts" during the EARS evaluation.
Application for the Position of Paralegal Specialist
On April 12, 2010, the Agency posted a vacancy announcement for a GS-7/9 Paralegal Specialist position. Complainant, who submitted an application for the position, erroneously answered "no" to a question about whether she had registered with the Selective Service. Because she is a female, Complainant should have answered "not applicable." Complainant was found to be ineligible for the position because of the "no" answer.
On May 11, 2010, after the announcement period had closed, Complainant asked for an opportunity to correct the answer. In a May 24, 2010, e-mail to Complainant, the Chief of the Operations Division, Personnel Staff, EOUSA, denied Complainant's request. He stated that, to treat applicants fairly, the Agency did not allow candidates to change their answers to the assessment questionnaire.
USA-2 stated in his affidavit that he asked S3 to contact the EOUSA to ask if Complainant could amend her application. S3 stated in his affidavit that EOUSA personnel handled the decisions regarding the application process and that he "did not interject [himself] into that process." At the hearing, S3 testified that he did not have the authority to correct the mistake on Complainant's application. He acknowledged that he spoke to the Chief of the Operations Division, but he did not believe that they discussed reposting the vacancy.2 It was S3's understanding that the EOUSA would certify a list of qualified applicants and that the position could be reposted if everyone on the list was rejected.
Complainant testified that it was her understanding that the office could have reposted the position and chose not to do so. She asserted that the Agency made the decision not to repost the vacancy after she complained about AUSA-1's inappropriate comment.
AJ Decision
In her decision, the AJ found that Complainant did not establish that the Agency discriminated against her as alleged. The AJ concluded that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not show that the articulated reasons were a pretext for discrimination.
With respect to Complainant's removal from the Federal Career Intern Program, the AJ noted that the Agency presented evidence that it removed Complainant from the Program because of her poor interpersonal skills with the management team and her difficulty in maintaining professional behavior in stressful situations. The AJ also noted that S2 testified that Complainant lacked commitment to the office's primary mission of litigation, called in sick when important things needed to be done, and did not arrive early on the first day of the annual retreat.
The AJ was not persuaded by Complainant's argument that she performed her duties successfully, had no documented performance deficiencies, and received no warning prior to her removal from the Program. The AJ concluded that the "issue in this case is not so much Complainant's work performance, but more her interpersonal skills and relationships with the management team." Complainant did not dispute that she had conflicts with BC and S1 and that she spoke to USA-2 about S3's demanding nature. Further, the AJ noted that the EARS evaluation team and S2 informed Complainant of concerns about her professionalism during stressful situations.
In addition, the AJ did not find the Agency's failure to give Complainant a 2009 performance appraisal to be evidence of pretext. The Office of General Counsel advised S2 and S3 not to complete the appraisal, and there was no evidence that the Agency issued appraisals to other individuals who served internships but were not offered permanent positions. Moreover, the "successful" and "outstanding" marks on the incomplete documents related to duties that Complainant undisputedly performed well. Even if Complainant had received a completed appraisal with these ratings, it would not have prevented her from being removed from the Intern Program because of interpersonal conflicts.
Further, although Complainant's removal from the Intern Program closely followed her complaint about USA-1's inappropriate comment, the AJ found that there were legitimate reasons for the timing of the removal decision. USA-2 made the decision in February 2010 because Complainant's internship was due to expire in two months and he did not want to spend money for Complainant's training requests if she was not going to receive a permanent position as the AO. The AJ also found that allegedly sexist remarks by S1 and S3 did not establish pretext. She noted that S1 was not the decision-maker, that S3's comments were not about Complainant, and that one of S3's comments pertained to the Agency rather than to a person.
Finally, the AJ found that Complainant did not show that the Agency retaliated against her when it did not repost the vacancy for the Paralegal Specialist, GS-0950-7/09, position. It was undisputed that Complainant made an error on her application and that the EOUSA staff, rather than the management team in Complainant's office, determined that Complainant was ineligible for the position. It also was undisputed that the EOUSA staff made the decision not to allow Complainant to correct her application. Assuming that the Chief of the Operations Division told S3 that the position could be reposted, the AJ concluded that the failure to repost the position was not retaliatory. In that regard, the AJ noted that the Agency had no obligation to correct Complainant's error. Moreover, there was no evidence that the Agency had reposted a vacancy for anyone who had made a mistake on an application but had not engaged in protected activity. Accordingly, the AJ found that Complainant did not establish that the Agency discriminated against her.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ's decision "is not a true reflection of the record." She asserts that the evidence does not support the AJ's conclusion that a personality conflict caused her removal from the Intern Program. Complainant also asserts that the Agency should have provided her with formal notice that she was failing the Program. In addition, Complainant argues that the AJ gave improper weight to S2's handwritten, undated note and to S1's descriptions of meetings. She contends that S1's testimony was not credible.
Complainant further contends that the AJ inaccurately portrayed the testimony of her mentor and LEA. She asserts that the mentor disagreed with S3's characterization of Complainant as immature, that LEA testified only that he thought that someone told him that Complainant had yelled at BC, and that LEA's testimony on that point was hearsay and not credible. Complainant also asserts that the AJ's decision inaccurately reflects testimony because, on three pages of the decision, the AJ confused individuals' names.
In addition, Complainant argues that the AJ misunderstood the testimony regarding comments made at the 2010 retreat and S1's decision not to continue to serve as the Sexual Harassment Coordinator. According to Complainant, the testimony supported her contention that employees did not report sexually harassing comments because they feared retaliation. She alleges that S1 chose to leave her position as the sexual harassment coordinator rather than to report the "porn" incident. Further, Complainant argues that the record does not support S2's "testimony that [Complainant] called in sick frequently" and did not set up a retreat lunch. She states that she made lunch arrangements prior to the retreat and that she was not at the lunch because the U.S. Attorney had agreed that she need not to be in the presence of a particular non-Agency individual. Finally, Complainant asserts that the AJ was not aware that the Agency offered to allow her to re-apply for the Paralegal Specialist position in exchange for the withdrawal of her EEO complaint.
In response, the Agency argues that substantial evidence in the record supports the AJ's determination that the Agency did not discriminate against Complainant. The Agency contends that the evidence supports the AJ's finding that management believed that Complainant lacked the interpersonal skills necessary for the AO position. The Agency also contends that, although USA-2 decided not to promote Complainant shortly after Complainant complained about AUSA-1's inappropriate remark, he had at a legitimate, nondiscriminatory reason for his action. In that regard, the Agency argues that managers were concerned about Complainant's ability to do the job and to interact with the management team, that Complainant's internship would expire in April 2010, and that the office needed to decide whether to send her to the training that she requested. Further, the Agency argues that the AJ correctly concluded that the Agency did not discriminate against Complainant when the EOUSA refused to allow Complainant to correct the error on her application for the Paralegal Specialist position.
STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether 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. See 29 C.F.R. � 1614.405(a). 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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
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 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
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 Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We find that substantial evidence of record supports the AJ's conclusions that the Agency articulated legitimate, nondiscriminatory reasons for not promoting Complainant to the permanent AO position and that Complainant did not establish that the articulated reasons were a pretext for discrimination. As the AJ noted, the Agency presented evidence that it removed Complainant from the Intern Program because of her interpersonal skills, difficulty in maintaining professional behavior in stressful situations, and relationships with management officials.
Complainant has not shown that the articulated reasons are pretextual. The evidence establishes that Complainant had difficult interactions with members of the management team and that the Agency removed her from the Intern Program because of her interpersonal skills and lack of professionalism in stressful situations. The Agency's failure to give Complainant a formal notice prior to the removal does not establish pretext in the circumstances presented here. Complainant cites no provision in the FCIP Agreement to support her assertion that the Agency should have given her formal notice that she was failing the Program. Further, LEA and S2 informed Complainant about concerns about her interactions with management, and the September 21, 2009, Memorandum of Significant Observations noted that supervisors questioned Complainant's ability to behave in a professional manner when under stress.
In addition, we are not persuaded by Complainant's arguments that the AJ gave improper weight to witnesses' testimony and other evidence, such as S2's handwritten note. Our independent review of the record indicates that the AJ properly weighed and evaluated the evidence. Although the AJ inadvertently confused the names of S2 and AUSA-1 three times, the mistake was harmless error. It was clear from the context that the AJ was referring to S2.
Although the Agency removed Complainant from the Intern Program shortly after she complained about AUSA-1's inappropriate remark, the evidence does not establish that the Agency's action was in reprisal for Complainant's protected activity. Complainant asserts that employees did not report sexually harassing comments because they feared retaliation, but she has not supported that assertion. For example, there is no evidence that employees who heard inappropriate remarks during the 2010 retreat chose not to report the remarks because of fear.
Complainant has not shown that the Agency's reasons for it action are unworthy of credence or that considerations of sex or reprisal more likely motivated the Agency. We find, therefore, that the AJ properly concluded that Complainant did not establish that the Agency discriminated against her on the bases of sex and reprisal when it did not promote her to the permanent AO position.
We further find that substantial evidence supports the AJ's determination that Complainant did not establish that the Agency engaged in reprisal when it did not allow her to correct the error in her application for the Paralegal Specialist, GS-0950-7/09, position and did not repost the vacancy. The Chief of the Operations Division, Personnel Staff, EOUSA, denied Complainant's request to amend her application because it was not Agency policy to allow candidates to change their answers to the assessment questionnaire. Complainant has produced no evidence that the Agency permitted other individuals to correct their applications after the close of the announcement period.
Similarly, Complainant has not shown that the Agency engaged in reprisal when it did not repost the vacancy. There is no evidence that the Agency reposted a vacancy for someone who had not engaged in protected activity. Complainant's assertion that, during mediation, the Agency offered to allow her to re-apply for the position has no bearing on whether substantial evidence supports the AJ's determination. As the AJ ruled during the hearing, settlement discussions are confidential. See EEO MD-110 Chap. 3 at II.B.3 ("Confidentiality is essential to the success of all EEO ADR proceedings."). Accordingly, the AJ properly refused to hear any testimony regarding such discussions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that substantial evidence of record supports the Administrative Judge's decision that Complainant did not prove that the Agency discriminated against her on the bases of sex and reprisal when it did not promote her to the permanent Administrative Officer position or on the basis of reprisal when it denied her the opportunity to correct an error on her application for a Paralegal Specialist position. Accordingly, we AFFIRM the Agency's final order, which implemented the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-19 (August 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2015
Date
1 The record reflects that Complainant was also referred to as [redacted].
2 The AJ stated in her decision that the Chief of the Operations Division testified during a deposition that he told S3 that reposting the vacancy was an option. The record contains a May 19, 2010, e-mail in which an individual in the EOUSA informs the Chief of the Operations Division that "[t]he selecting official could reopen and consider all old and new applicants and her application could be edited during that open period."
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