Gregorio S.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Nov 4, 2020

2019005676 (E.E.O.C. Nov. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregorio S.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2019005676 Hearing No. 570201800176X Agency No. DEA201700801 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s July 1, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was a Basic Agent Trainee ("BAT") at the DEA Academy in Quantico, Virginia. On June 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when: On May 5, 2017, he was dismissed from the BAT Program because he did not pass two component exercises of Physical Task Assessment/Physical Task Training (“PTT”). 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. 2019005676 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, and, over Complainant’s objection, the AJ subsequently issued a decision by summary judgment in favor of the Agency. The record provides the following undisputed facts: On March 5, 2017, Complainant arrived at Quantico Training Academy for the Basic Agent Trainee (“BAT”) Program, and was placed in BAT Class 210, along with 53 other trainees (or BATs). On March 8, 2017, their class underwent the Physical Training Test (“PTT”). The PTT was comprised of 4 components: sit-ups, a 300-meter sprint, a 1.5 mile run, and push-ups, in that order. To pass the PTT, a BAT must score at least 1 point for each component, and score a minimum of 12 points total. If a BAT failed the PTT, they were required to retake it 9 weeks later (“Remedial PTT”). In the meantime, the BAT was placed on “probation,” and was not permitted to leave the base until they retook the PTT. If the BAT failed again, they were dismissed from the Academy. Complainant, a veteran (United States Marine Corps) and former police officer who passed the PTT twice at the Agency’s Greensboro Resident Office when preparing for the BAT Program at Quantico, did not pass the March 8, 2017 PTT because he scored a 0 on the sit-up component. When Complainant, along with 7 other trainees from BAT Class 210, took the May 5, 2017 Remedial PTT, he did not pass because he scored a 0 on the 300-meter sprint component. Per Agency policy, Complainant was dismissed. Complainant contends that he met the requirements of each component of the PTT and Remedial PTT. He alleges that the Agency administered the PTT and Remedial PTT under circumstances and using methodologies that allowed for discrimination and unconscious bias to impact his scores. PTT To pass the sit-up component of the PTT, Male BATs were required to complete a minimum of 38 sit-ups in one minute. A Special Agent (“SA”) Instructor demonstrated both proper and improper sit-up form, and read the protocols for the sit up component before the BATs started. In the instant case, the SA Instructor, GS-13 (“S1,” white), had been conducting PTTs at the Quantico Training Academy for a year and a half, and been employed by the Agency for 8 years. He explained that when counting sit-ups, one of the protocol violation that results in the sit-up not getting counted is “kipping, which is when the buttocks leave the ground and you 're not using your abdominal muscles which is what the sit up is for and you're actually using your legs.” While counting Complainant’s sit-ups, S1 observed Complainant “kipping ” and warned Complainant, “keep your butt on the ground” multiple times. 2019005676 3 Complainant recalled S1’s warning, and testified, “I adjusted to the instructor’s guidance, although I didn’t feel that I was kipping.” S1 did not count the sit-up repetitions aloud, so Complainant did not know which sit-ups were counted. He estimated that he completed 40 to 50 sit-ups using proper form within the allotted 1 minute. However, S1 calculated Complainant to have properly completed 37 sit-ups. The BAT holding Complainant’s feet testified that he could not see if Complainant was kipping or not. The SA tasked with recording Complainant’s score wrote the score S1 provided, and does not appear to have monitored Complainant’s sit-up component. With a score of 37, one shy of the minimum, Complainant received a “0” on the sit-up component, thereby failing the PTT entirely. Remedial PTT On May 5, 2017, Complainant and 8 other trainees from Class 210 took the Remedial PTT. The SA Instructor, GS-13, (“S2,” white) conducting the Remedial PTT had been conducting PTTs at the Quantico Training Academy for over three years, and been employed by the Agency for 13 and a half years. For the 300-meter sprint component, S1 was assigned to assist S2 by standing at the finish line and recording each BAT’s time. There were a number of “higher-ups” in a nearby pavilion at the finish line side of the track, including the Special Agent in Charge (“SAC,” White) of the Quantico Training Academy, the Assistant Special Agent in Charge (”ASAC,” African- American) and multiple GS-14 Unit Chiefs. Agency protocol states that “optimally, the 300-meter sprint is conducted on an outdoor oval track (1/4 mile or 400 meters), or an indoor track, whose length must be known, so the participant can be advised of the course he or she must sprint.” For the March 8, 2017 PTT, the 300-meter sprint component was conducted on an indoor track with four to six BATs running at a time, each assigned to a lane. Under these circumstances, Complainant completed the 300-meter sprint in 44.7 seconds, earning 6 points. Complainant also passed the 300-meter sprint component for his two practice PTTs at the Greensboro Resident Office prior to arriving in Quantico, and shortly after the Remedial PTT, when he took the PTT again at the Greensboro Resident Office in hopes of getting accepted back into the Academy. The May 5, 2017 Remedial PTT was conducted individually on an outdoor 400 meter oval track with clearly marked lanes and staggered start and finish lines. By multiple accounts, it was windy and raining so hard that it impacted visibility, there were also a puddle on the inner lanes of the track. One of the BATs asked S2 if they could use lane 3 for the sprint to avoid slipping and falling into grass. S2 agreed and instructed the BATs to wait in the fieldhouse by the track, out of the rain, then meet him at lane 3 when it was their turn to sprint. Both S1 and S2 testify that they witnessed Complainant and another trainee (“T1,” African- American, mixed race) cross into the inner lane as they rounded the track, shaving approximately 10 to 15 meters from their 300-meter sprint, a violation of protocol. Class 210 was the third class to include the 300-meter sprint component in the PTT, so to date, neither S1, nor S2 had addressed a lane change protocol violation before. It is undisputed that S2 did not specify that the BATs had to stay in lane 3 for the duration of the 300-meter sprint. 2019005676 4 Afterward, SAC informed S1 that he witnessed Complainant change lanes, they conferred with S2 and other Unit Chiefs and SAs that were present. Several SAs and Unit Chiefs, including the Unit Chief, GS-14, of Physical Training for BAT Class 210 (“UC,” white) met with Complainant and T1 immediately after the 300-meter sprint and informed them that they violated protocol, but would not specify how, instructing them to go to class. About four hours later, Complainant and T1 were pulled from class, and escorted to a room where they met with UC and two SAs, and the SAC. They learned about the lane change protocol violation and that they were disqualified from the 300-meter sprint. They were instructed to pack their belongings, because, in accordance with Agency policy for BATs that fail both the PTT and Remedial PTT, they were no longer eligible for the BAT Program. UC assured Complainant and T1 that they would have an opportunity to join another BAT Class at a later date, which later proved to be based on outdated information. There is no testimony in the record that contradicts S1, S2 and the SAC’s assertion that Complainant changed lanes, resulting in an incomplete 300-meter sprint. Complainant cannot recall if he changed lanes. During the sprint he was concentrating on completing it on time, mindful that this was his “last chance,” and that he was on a slippery track in poor weather conditions. He also points out that Management did not inform him that he made this protocol violation until after he completed the mentally and physically grueling Remedial PTT, followed by four hours of focusing on classwork. From their position in the field house, none of the other Remedial PTT BATs saw Complainant’s sprint at the point where he allegedly crossed lanes. Other than the SAC, the “higher ups” watching from the pavilion, were either not paying close enough attention, or, they could not tell if Complainant changed lanes due to the weather conditions and distance from the pavilion. In addition, S1 did not provide Complainant with a time for his sprint, which may have helped indicate whether he ran the full 300-meters, and it was not recorded on his score sheet. One of the trainees who passed the Remedial PTT, (Asian/White) testified that it was his impression that Complainant made a “honest mistake.” Another trainee who passed the Remedial PTT (Hispanic) testified that she “was under the impression that [Complainant and T1] had both passed the PT test because they obviously did very well when they took the test, and so there was no doubt in my mind that they passed.” She also opined “I think it wasn’t clear enough. I mean it wasn’t specifically stated that we needed to stay on lane three. I think it was an honest mistake that any of us could have made” and that she was “lucky not to have made the same mistake.” A trainee that did not pass the Remedial PTT (Middle Eastern) recounted that Complainant was “in excellent physical shape, I worked out with him a few times… I didn’t forecast him to have any issues at all with his test.” Complainant received a letter, dated May 5, 2017, signed by Special Agent in Charge (SAC), dismissing him from the BAT Program and directing him to report to the Agency’s Greensboro Resident Office for further processing. The SAC issued a letter formally terminating Complainant’s employment with the Agency on June 29, 2017. 2019005676 5 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). 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. Thus, a complainant seeking to overcome a summary judgment decision must do more than simply repeat the same facts initially raised in his or her formal complaint. See Patton v. United States Postal Serv., EEOC Request No. 05930055 (Jul. 1, 1993), see also EEO-MD-110, 7-15. The Commission will not disturb an AJ’s decision by summary judgment where the complainant raises questions of fact on peripheral or minor details about the events described in his or her complaint yet does not show a question of material fact existed on the matters of discriminatory animus or pretext. Thurston v. United States Postal Serv., EEOC Appeal No. 01200554501 (Dec. 5, 2006), see also Complainant v. United States Postal Serv., EEOC Appeal No. 0120140054 (Sept. 23, 2014) (“Complainant’s belief alone did not establish that the alleged events occurred because of her protected bases.”) and Weinstock v. Columbia Univ., 224 F.3d 33 (2nd Cir. 2000) (“At summary judgment stage . . . unsupported allegations do not create a material issue of fact.”) Disparate Treatment 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 a 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. See McDonnell Douglas, 411 U.S. at 802, Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2019005676 6 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, 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, 519 (1993). To establish a prima facie case of disparate treatment, Complainant must show that he (1) is a member of a protected class, (2) was subjected to an adverse employment action concerning a term, condition, or privilege of employment, and (3) was treated more favorably than similarly situated individuals outside of his protected class (“comparator evidence”), or by setting forth some other evidence from which a reasonable fact-finder could draw an inference of discrimination. See Furnco, 438 U.S. at 576, see also McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008), Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998) (pretext can be established by showing an evidentiary link between membership in a protected class and the adverse employment action.) It is well established that for comparative evidence relating to other employees to be considered relevant, they must be “similarly situated.” See Anderson v. Dep’t of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003). In other words, to be considered similarly situated, the person with whom the complainant is comparing himself must be similar in substantially all aspects of employment, so that it would be expected that they would be treated in the same manner. See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) recon. den., EEOC Request No. 05A20020 (Dec. 28, 2002). For the sit-up component of the March 8, 2017 PTT, Complainant’s “similarly-situated” comparators would be any BATs from Class 210 that took the March 8, 2017 PTT sit-up component administered by S1. Complainant has not identified any comparators who were treated differently in the areas where he alleges he was placed at a disadvantage. Specifically, he has not offered evidence that would indicate or create a question of fact on whether S1 counted repetitions out loud or was less stringent on identifying instances of “kipping” for the non-African-American BATs. For the 300-meter sprint component of the May 5, 2017 Remedial PTT, Complainant engaged in problem conduct by crossing from lane 3 to an interior lane of the track prior to completing the 300-meter sprint component. Therefore, to be “similarly situated” to Complainant, his comparators must not only have participated in the May 5, 2017 Remedial PTT 300-meter sprint, but also have engaged in the same conduct. The only comparator to meet this specification was T1, and it is undisputed that she and Complainant were treated the same as a result of the same problem conduct. We note that Complainant’s appellate argument that non-African-American BATs were not “penalized” for “protocols that are nonexistent or not instructed” during the May 5, 2017 Remedial PTT 300-meter sprint component, ignores the fact that only he and T1 engaged in the conduct that resulted in penalization. 2019005676 7 Alternately, Complainant has not identified or created a question of material fact over whether a similarly situated comparator also changed lanes during the May 5, 2017 Remedial PTT 300-meter sprint, yet was not disqualified and dismissed by the Agency. Although Complainant lacks comparator evidence, it is not necessarily required, in establishing a prima facie case of disparate treatment, to show that he was treated differently from persons otherwise similarly situated who are not members of her protected group. See Rowley v. Dep’t of the Army, Appeal No. 01985332 (Jul. 12, 2001), Saenz, supra. In the instant case, Complainant also offers non-comparator evidence which he argues would allow a reasonable fact-finder could draw an inference of discrimination. See Furnco, supra. Complainant describes instances of alleged discriminatory harassment by the same Unit Chief who brought his alleged lane change to S1’s attention. For instance, the day before the Remedial PTT, during firearms qualifications, this Unit Chief called Complainant over from the rest of the class, and in front of another Unit Chief, told Complainant that he needed to “get his head out of his ass.” Complainant had not seen a Unit Chief single out or speak in this manner toward any of his classmates. (Complainant was the only African-American BAT in this particular class). He recounts another incident on May 3, 2017 where the Unit Chief glared at him and rolled his eyes, then canceled training for the day, presumably because a civilian saw Complainant practicing (“dry-firing”) his firearm, even though Complainant’s classmates were engaging in the same activity, sanctioned by the Unit Chief leading their class. The Unit Chief’s actions, as described by Complainant, are insufficient to create an inference of discriminatory intent from the Agency’s scoring process for the PTT and Remedial PTT. Likewise, these additional details do not raise an issue or material fact with respect to the issue before us. The Unit Chief was not in Complainant’s chain of command, did not conduct the PTT or Remedial PTT, he was not the only witness of Complainant’s lane change and he was not a decisionmaker in whether to disqualify and dismiss Complainant from the BAT Program. To the extent Complainant attempts to establish that a question of credibility exists, warranting a hearing, he again focuses on non-material details. He makes much of the conflicting testimony in the record on whether S2 read the 300-meter sprint protocol out loud to the trainees at the time he administered it, in accordance with Agency policy. It is undisputed that even if the protocol was read aloud, the issue of changing lanes would not have been addressed. Complainant also cites recordkeeping discrepancies in his Remedial PTT scores however, the only relevant score is his disqualification from the 300-meter sprint component. Complainant has not connected these apparent credibility discrepancies in the record to testimony and recordkeeping to his allegation of race discrimination. Even if Complainant could establish a prima facie case for discrimination based on race, he has not shown that the Agency’s legitimate nondiscriminatory reason for its actions was pretext for discrimination. Specifically, the Agency states that it dismissed Complainant from the BAT Program because he did not pass the PTT or the Remedial PTT, and it is Agency policy to dismiss BATs that do not pass the PTT or the Remedial PTT. 2019005676 8 Complainant challenges the reasonableness of the Agency’s business judgment in the PTT and Remedial PTT, arguing that they were pretext for discrimination, as both were scored in a discriminatory manner. The Agency, as an employer, has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes. Furnco, supra, Nix v. WLCY Radio/Rayhall Comm., 738 F.2d 1181 (11th Cir. 1984). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. The trier of fact must understand that the focus is to be on the employer's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, this Commission "does not second- guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) recon. den. EEOC Request No. 0520120603 (Jan. 31. 2013). With respect to the March 8, 2017 PTT sit-up component, Complainant argues that the practice of the Quantico SAs not counting sit-ups out loud created an opportunity for SAs to intentionally fail non-white trainees, inducing them to quit. Alternately, he alleges that the lack of transparency created when assessing whether a BAT is “kipping” while not counting sit-ups aloud, increases the potential for SAs to unconsciously apply racial bias to their scoring. Complainant asserts that he passed the PTT three times at the Agency’s Greensboro facility, where it was the practice to count sit-ups out loud. Yet, during the March 8, 2017 PTT, S1 did not disclose which sit ups he counted, and which he disregarded as “kipping.” While it is possible that counting sit-ups out loud creates a less subjective scoring method, Complainant has not offered any evidence that the Agency’s methodology of not counting sit-ups out loud for the PTTs conducted in its Quantico facility is unreasonable in terms of business judgment. Likewise, Complainant only offers bald assertions to dispute S1’s scoring, including instances of “kipping” during the March 8, 2017 PTT. Without evidence giving rise to a question of material fact on whether his score on the March 8, 2017 PTT sit-up component was due to “kipping,” or pretext for racial discrimination, Complainant’s assertions alone are insufficient to overcome the Agency’s legitimate nondiscriminatory reason. With respect to the May 5, 2017 Remedial PTT 300-meter sprint, as a preliminary matter, we find no question of material fact exists with respect to whether Complainant changed lanes during the 300-meter sprint, based on multiple witness’ testimony, and that no witnesses, including Complainant, definitively contradict this testimony. We agree with Complainant’s position, that it would reflect reasonable business judgment on the part of the Agency had S1 and S2 given Complainant the “benefit of the doubt,” considering the circumstances, as opposed to disqualification. Complainant was undoubtably capable of completing the Remedial PTT on May 5, 2017. Significantly, he only needed the minimal score, 1 point, on the 300-meter sprint component to pass. According to the ROI, Complainant completed 46 sit-ups (4 points), 47 pushups (4 points), and a time of 11:37 (2 points) on the 1.5 Mile Run for the May 5, 2017 Remedial PTT. 2019005676 9 There is no evidence that Complainant’s protocol violation was intentional and witness testimony supports an inference that he made an “honest mistake.” Also, it is undisputed that the conditions for the Remedial PTT 300-meter sprint diverged significantly from the prior PTT, and the BATs were not instructed to stay in the same lane. However, Complainant has not shown, and we do not find S1 and S2’s decision to disqualify him from the 300-meter sprint component, resulting in his dismissal, so unreasonable as to give rise to an inference of pretext. The Agency established that its actions were reasonable in that they were consistent with its policies and protocols when it decided to disqualify, and ultimately dismiss Complainant from the BAT Program for changing lanes during the 300-meter sprint component, an infraction that is not articulated in Agency protocol and instructions. Crossing from lane 3 to an interior lane on the track would have the effect of shortening the sprint, an objective violation of the Agency protocol for the 300-meter sprint component. Complainant was aware that to be credited any points for the 300-meter sprint, he would have to run the full 300 meters, based on his participation in the PTT, and a March 6, 2017 form he signed acknowledging that he read the PTT protocols. These protocols also state that optimally, the 300-meter sprint component would be conducted on an outdoor track. We find no evidence that the Agency acted outside the scope of its authority, or in any other way unreasonable in terms of business judgment to establish pretext for a discriminatory motive. We note our long held position that managerial decisions and personnel actions that are disadvantageous to the employee do not automatically equate to discrimination. See Sotomayer v. Dep’t of the Army, EEOC Appeal No. 01A43440 (May 17, 2006) Arnold v. United States Postal Serv., EEOC Appeal No. 01A24022 (Oct.9, 2003). Complainant has shown that the Agency’s decision was disadvantageous to him, and potentially detrimental, as it appears the Agency invested time and resources into training Complainant, and dismissed him on the grounds of failing a physical test that he was capable of passing. However, we are to infer pretext from unreasonable business judgment, and an Agency’s prioritization of adhering to its own protocol and policies, and providing no more than two opportunities to pass the PTT, is not an “unreasonable” in terms business judgement. Statistical Evidence The Commission and the courts have held, that while statistics are relevant, statistics alone, especially if they are generalized and over broad, will not be sufficient to prove pretext. In individual complaints of disparate treatment, even if those statistics establish a meaningful disparity. See, e.g., Stevens v. EEOC, EEOC Appeal No. 01970848 (Aug. 14, 1997), Talley v. United States Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983), cert denied 466 U.S. 952 (1984), Hudson v. IBM Corp., 620 F.2d 351, 355 (2d Cir.), cert denied 449 U.S. 1066 (1980). In disparate treatment cases, such as this one, statistical evidence is less significant than in disparate impact cases because the ultimate issue is whether a particular complainant was the victim of an illegitimately motivated employment decision. See McCarty v. Dep’t of the Navy, EEOC Appeal No. 01965283 (Jan. 28, 1998), citing Krodel v. Young, 748 F.2d 701, 710 (D.C. Cir. 1984). 2019005676 10 Complainant argues that S1 and S2’s scoring decisions were influenced by their unconscious biases against African-American trainees, in part caused by the institutionalized homogeneity of the BAT program. Complainant recalls that he and the other 53 trainees in his class were told they should feel “honored” to be part of the class because they were selected from approximately thirty thousand (30,000) applicants. Of the 53, only 4 were African American, including Complainant. He aptly notes, “[i]t is difficult to believe that only four (4) African-Americans in the United States qualified for the position of Special Agent in Basic Agent Class 210.” He also notes that although nearly all of the BATs in Class 210 were white, only half of the BATs that failed the March 8, 2017 PTT (4 out of 8 BATs) were white. Further, all of the white trainees all passed the Remedial PTT. These statistics are insufficient to establish that a question of material fact exists to warrant a hearing, given that Complainant has not provided evidence beyond his own assertions that the Agency acted with discriminatory animus. See Sims v. United States Postal Serv., EEOC Appeal No. 0120070183 (Jul. 20, 2008) (a complainant’s “own statements of belief that discrimination occurred, no matter how genuinely held, are not proof and cannot withstand legal scrutiny.) Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 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 adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2019005676 11 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, 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. 2019005676 12 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 November 4, 2020 Date