[Redacted], Avery R., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Feb 15, 2023

Appeal No. 2022002194 (E.E.O.C. Feb. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Avery R.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Appeal No. 2022002194 Hearing No. 470-2020-00226X Agency No. DFAS-00005-2020 DECISION Following its March 16, 2022 final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Division Chief, GS- 12, Claims Division, Debt & Claims Management Organization (DCMO or Debt & Claims at the Agency’s HQ Finance Operations DFAS facility in Indianapolis, Indiana. Factual Background In April 2018 two female bargaining unit employees, Lead Military Pay Clerk (African American) and Financial Systems Analyst (Asian), brought complaints against Complainant to 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. 2022002194 2 the attention of their female union Executive Vice President (Union EVP). They alleged that Complainant was abusing his power, harassing and bullying subordinates, and manipulating reports within DCMO. They alleged Complainant was favoring other employees with preferential assignments and allowing them to stand in between his legs at his desk, belittling Lead Military Pay Clerk and Financial Systems Analyst, and engaging in other unprofessional behavior. Union EVP then interviewed approximately ten employees to investigate these allegations. Union EVP believed Complainant’s first-line supervisor, the Director of DCMO (Caucasian female), was aware of these concerns and allowing Complainant’s behavior to occur. Therefore, she approached Complainant’s second-level supervisor, Director of Finance Operations (African- American male), with her concerns. Union EVP sent Director of Finance Operations a letter outlining her findings on or about April 16, 2018. Director of Finance Operations then instructed a division chief within Debt & Claims (First Investigator) (African American male) to perform an inquiry in accordance with DFAS Instruction 1440.3-I, Prevention and Elimination of Unlawful Harassment in the Workplace (1440 Investigation). First Investigator undertook and completed the 1440 Investigation, interviewing twelve individuals, including Complainant, Financial Systems Analyst, and Lead Military Pay Clerk. First Investigator issued a report of his findings around August 30, 2018 (the First Report). A copy of this report is not contained in the record, but according to the Agency, First Investigator’s report identified the “Summary of Allegations” as follows: Complainant is being accused of harassing Financial Systems Analyst and Lead Military Pay Clerk in the following of ways: a. Yelling at Financial Systems Analyst in his office and using offensive language to describe her. b. Using Financial Systems Analyst’s USERID to track OPA errors. c. Rejection of OPA cases is retaliation for errors Financial Systems Analyst had assigned to a technician on the accused staff. d. Manipulating Financial Systems Analyst’s right to assign post audit errors. e. Reduction of Lead Military Pay Clerk’s OT hours. f. Accusations against Lead Military Pay Clerk to manipulate the Director Debt & Claims Management’s perception. g. Abusing his power and requesting that Lead Military Pay Clerk’s appraisal rating be lowered. h. Using a Memorandum for Record (MFR) Lead Military Pay Clerk received for behavior as an intimidation tactic. First Investigator’s 1440 Investigation ultimately found no harassing behavior by Complainant, but it did find some inappropriate behavior on Complainant’s part. Financial Systems Analyst and Lead Military Pay Clerk were informed of this in September 2018 and they let Union EVP know they were not happy with the investigation and did not believe anything was accomplished by it. 2022002194 3 After receiving the First Report, Director of Finance Operations consulted with a former Labor and Employee Relations employee within DFAS (former LER). Former LER indicated it sounded like personality conflicts and given Complainant’s lack of prior discipline, he recommended informal disciplinary actions such as a warning, a verbal reprimand, and moving Complainant to a different area within Finance Operations. On October 10, 2018, Director of Finance Operations issued Complainant a Letter of Warning regarding “inappropriate and unprofessional behavior” based on some of the findings from the First Report. However, Director of Finance Operations did not move Complainant to another area. The letter mentioned two incidents involving Financial Systems Analyst and one incident involving Lead Military Pay Clerk. Complainant signed the letter, stating, “[w]hile I do not agree with the findings I acknowledge that there is a standard of behavior and I will endeavor to adhere to those standards.” Union EVP attempted to obtain a copy of the First Report. In doing so, she contacted Director of Finance Operations and LER Specialist. Based on those conversations, Union EVP believed the 1440 Investigation had focused only on Complainant’s treatment of Financial Systems Analyst and Lead Military Pay Clerk, as opposed to his behavior towards Debt & Claims employees as a whole. Union EVP believed not only that not all of the original allegations investigated, but also that she was receiving information that Complainant’s conduct was ongoing. Therefore, in December 2018, Union EVP went above Director of Finance Operations and contacted DFAS Indianapolis Chief of Staff (Caucasian male) regarding her concerns that the 1440 Investigation was incomplete and there were new allegations of harassing behavior by Complainant. DFAS Indianapolis Chief of Staff brought this to the attention of Director of Finance Operations. Director of Finance Operations contacted both the LER Department and the Office of General Counsel (OGC) for guidance. After going back and forth with LER and OGC, a decision was made to wait for formal allegations from the union. Union EVP then sent a second harassment letter to Human Resources Specialist - Anti- Harassment Program Manager (HR Specialist) (African-American female), the point of contact for harassment charges at DFAS Indianapolis. After receiving the second harassment letter, it was determined that the issues of harassment, favoritism, improper hiring and selections needed to be investigated. OGC recommended that someone outside of Finance Operations be appointed to conduct the second 1440 Investigation. DFAS Indianapolis Chief of Staff was to reach across different organizations to select an investigator. The record does not contain any information as to how or why he made his selection, but he selected Second Investigator (Caucasian female), a branch chief in Audit Support for the Army divisions, to conduct the Second 1440 Investigation. She had never worked in Debt & Claims, nor did she know Complainant. However, her husband had worked in Debt & Claims prior to Complainant working there. 2022002194 4 With guidance from LER, Director of Finance Operations sent Second Investigator a letter around February 27, 2019 notifying her that she would be conducting the Second 1440 Investigation. Second Investigator also spoke to HR Specialist, who advised her that they were looking for an unbiased person who did not know any of the parties involved. HR Specialist also indicated not all of the union’s concerns had been investigated during the prior 1440 Investigation. Second Investigator then conducted the Second 1440 Investigation, issuing a report to Director of Finance Operations on May 8, 2019 (the Second Report). Second Investigator found that not all of the claims against Complainant were substantiated. However, she found that Complainant acted inappropriately when he spent an excessive amount of time discussing non work-related matters in the workplace with perceived favorite employees; that certain female employees would go into Complainant’s office, stand in front of him and proceed to sit on his desk at a very close distance; several witnesses stated that Complainant acted unfairly and inconsistently with subordinate employees, and gave preferential treatment to perceived favorite employees; Complainant disciplined Lead Military Pay Clerk inconsistently compared to the way he disciplined other employees; berated employees who had received promotions/transfers; and removed Financial Systems Analyst’s ability to assign errors. On May 23, 2019, after reviewing the Second Report, and in consultation with LER and OGC, Director of Finance Operations temporarily detailed Complainant to a non-supervisory, GS-12, Financial Management Analyst position in Accounting Operations. Director of Finance Operations decided, with the advice of LER, that it would be best to separate Complainant from employees who had filed complaints against him in order to protect Complainant, the employees, and the Agency. Also on May 23, 2019, after counsel from LER and OGC, Director of Finance Operations removed Complainant from further consideration for the GS-13 supervisory positions for which Complainant had applied. Director of Finance Operations said he took this action because he believed disciplinary action could be brought against Complainant based on the Second Report and that it would be inappropriate to allow Complainant, at the present time, to potentially be selected for a position in which he would supervise an even larger number of subordinates. On September 4, 2019, after consulting with Team Lead HR Specialist, Director of Finance Operations issued Complainant a Notice of Proposed Suspension for fourteen (14) calendar days for Inappropriate Conduct during an Inquiry, Lack of Candor, and Conduct Unbecoming a Supervisor. The charges were based on conduct that had been discovered during the second 1440 Investigation. Some of the conduct had occurred prior to the first 1440 Investigation but was not discovered until the second 1440 Investigation because it was not within the scope of the first 1440 Investigation. He also presented Complainant with an Alternative to Suspension Agreement, by which Complainant would accept the charges against him, but serve no suspension. He would lose no money. However, it would go into his file for three years and he would not be able to telework for one year. 2022002194 5 Complainant chose to appeal the Proposed Suspension, submitting his written appeal on September 19, 2019 to Deputy Director Indianapolis Network, the Deciding Official. Complainant made his verbal appeal to the Deciding Official on October 3, 2019. On October 16, 2019, the Deciding Official issued his Notice of Decision on Proposed Suspension. Based on the totality of the information provided to him, and after giving consideration to Complainant’s written and oral reply to the proposed fourteen (14) calendar day suspension, the Deciding Official decided to reduce it to a two (2) day suspension for Conduct Unbecoming a Supervisor. Formal EEO Complaint On December 2, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to continuous harassment and/or unconscious bias creating a hostile work environment for Complainant and others, and discriminated against him, on the bases of race (Bi-Racial: African American and Caucasian) and sex (male) when his second level supervisor, Director of Finance Operations, and others made numerous baseless uncorroborated allegations against him, filed police reports against him, opened and adjudicated a 1440 investigation, and then reopened the investigation and steered it to arrive at a conclusion that would have Complainant removed from consideration for promotion. As a result, Complainant was issued a letter of warning, removed from consideration for promotion, removed from his position as division chief, given a letter of proposed suspension, and subsequently given a 2-day suspension. Complainant also alleged there was inappropriate conduct and behavior by the investigator of the reopened 1440 investigation. Complainant contended Director of Finance Operations allowed other employees to harass him, changed Complainant’s performance evaluation, cancelled Complainant’s performance bonus, and allowed significant time to pass without providing reasoning for Complainant’s removal as a supervisor. The Agency ultimately framed Complainant’s formal complaint as follows: Whether you were subjected to disparate treatment discrimination based on race (African American) and sex (male) by Director of Finance Operations when the following occurred: 1. On November 10, 2019, you were issued a SF-50, removing you from your duties as division chief. 2. On or about September 4, 2019, you received a notice for a proposed suspension as a result of the DFAS 1440.3-I, Prevention and Elimination of Unlawful Harassment in the Workplace inquiry. You were suspended for two days on October 16, 2019, for conduct unbecoming a supervisor. 2022002194 6 3. Between May 24-July 27, 2019, you were removed from consideration for promotion to the GS-13, Deputy Director of Debt & Claims position and a lesser qualified white male was selected. 4. On October 10, 2018, you were issued a letter of warning (LOW) for misconduct based on a 1440 investigation, investigated by [First Investigator]. 5. On an unspecified date, after you had received your performance appraisal, Director of Finance Operations, second-line supervisor, stepped in and superceded your first line supervisor’s determination that you exceeded expectations, deleted your appraisal, and cancelled your performance bonus. The Agency accepted Claims 1 and 2 for investigation, but dismissed Claims 3-5 for untimely EEO counselor contact. However, the Agency’s May 21, 2020 Revised Acceptance Letter advised that “Claims 3, 4, and 5, will be used as background information in support of your harassment claim.” (ROI, p. 83). 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). AJ Hearing and Decisions Complainant timely requested a hearing and the AJ held a hearing on May 5 and 6, 2021 and June 7 and 8, 2021, and issued a bench decision on June 9, 2021. The AJ’s June 9, 2021 Bench Decision found that: “Complainant has not established that he was subjected to discrimination on the bases alleged; therefore, a finding of no discrimination is hereby entered.” (Final Hearing Transcript, June 9, 2021, p. 171). However, the AJ also found that “the second investigation and the manner in which it was conducted was predicated on discriminatory animus. Although these aspects of my finding was not part -- was not part of the Complainant's case, this finding was based on what I extracted during this hearing.” (Final Hearing Transcript, June 9, 2021, pp. 170- 171). The AJ then set a post-hearing conference to address the remedy or damages on the issue of the second investigation, and provided both sides an opportunity to brief these narrow findings. On July 9, 2021, the Agency filed a Motion for Reconsideration of the decision finding the Agency’s second 1440 investigation, as well as the selection of the investigator was based on discriminatory animus. On July 23, 2021, Complainant responded, requesting the AJ reconsider the portion of his decision finding in favor of the Agency. Furthermore, the Complainant argued that his claim of hostile work environment was not addressed during the hearing. On August 20, 2021, the Agency responded to the Complainant’s claim of a hostile work environment. On October 25, 2021, a second hearing was conducted on the parties’ Motions. At the end of the hearing, the AJ issued another bench decision, partially reversing his prior decision. 2022002194 7 The AJ denied the Agency’s Motion for Reconsideration. As to Complainant’s Motion for Reconsideration, the AJ again found Complainant had not proven discrimination based on race. However, as to Complainant’s claim of discrimination based on sex, the AJ granted the Motion for Reconsideration and issued a cause finding against the Agency on the basis of sex: However, I also find that the Complainant has presented enough evidence to suggest that his removal from consideration, his suspension from 14 days to 2 days, his non -- his reassignment from his supervisory Financial Management specialist position to non-supervisory position were predicated on sex, sexual allegations leveled against him by those females, by the three females in question. Therefore, based on the totality of the evidence presented, I find that the Complainant has carried out his burden. (Hearing Transcript, Oct. 25, 2021, p. 94). The AJ further found that the Agency’s articulated reason for nondiscrimination was unworthy of credence, stating that the Agency witnesses “were either lying or presenting information that were no credible.” (Hearing Transcript, Oct. 25, 2021, p. 103). The AJ then considered Complainant’s claim for hostile work environment. Complainant’s claim of hostile work environment based on race was denied. However, the AJ found Complainant had carried his burden of showing he was subjected to a hostile work environment based on sex. A post-hearing conference held on November 11, 2021 authorized the parties to conduct additional discovery on damages. A hearing on damages was held on January 24, 2022. On February 9, 2022, the AJ issued an Order Entering Judgment, followed by an Amended Order Entering Judgment. In the Amended Order Entering Judgment, the AJ found as follows: For the reasons set forth in the BENCH DECISION dated June 9, 2021, beginning from page 3 of the Hearing Transcript, judgment in the above- captioned matter was hereby ENTERED in part in favor of the Agency and in part in favor of the Complainant. In other words, with regards to the Complainant’s claim of discrimination based on race and sex, a finding of no discrimination was entered in favor of the Agency. With regards to the Agency’s conduct on the second 1440.3 investigation against the Complainant, I find that the decision was based on discriminatory motive. In other words, the selection of the investigator, as well as the entire investigative framework was based on discriminatory animus. On July 9, 2021, the Agency filed a MOTION FOR RECONSIDERATION of the decision finding the Agency’s second 1440 investigation, as well as the selection of the investigator was based on discriminatory animus. On July 23, 2021, the Complainant responded to the Agency’s MOTION FOR RECONSIDERATION. 2022002194 8 In his response, the Complainant requested the undersigned judge to reconsider his decision that finds in part in favor of the Agency. Furthermore, the Complainant argues that his claim of hostile work environment was not addressed during the hearing. On August 20, 2021, the Agency responded to the Complainant’s claim of a hostile work environment. On October 25, 2021, a second hearing was conducted on the parties’ MOTION FOR RECONSIDERATION. For the reasons set forth in the BENCH DECISION dated October 25, 2021, beginning from page 84 of the Hearing Transcript, judgment in the above- captioned matter is hereby ENTERED in part in favor of the Agency and in part in favor of the Complainant. Regarding the Agency’s MOTION FOR RECONSIDERATION of the decision finding that the second investigation, as well as the selection of the investigator was based on discrimination motive is DENIED. Regarding the Complainant’s MOTION FOR RECONSIDERATION of the decision dismissing his complaint with a finding of no discrimination is DENIED in part and GRANTED in part. In other words, the Complainant’s MOTION FOR RECONSIDERATION of the decision finding no discrimination based on race is DENIED. Regarding the Complainant’s claim of discrimination and hostile work environment based on sex, judgment is hereby ENTERED in favor of the Complainant. On January 24, 2022, a hearing was held on damages. For the reasons set forth in the BENCH DECISION dated January 24, 2022, beginning from page 85 of the Hearing Transcript, the Complainant is hereby awarded the following remedies in accordance Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975); Adesanya v. U.S. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994); 29 CFR 1614.501 (C) (1): 1. Any and all adverse materials that arose from the second 1440 investigation shall be expunged from the Complainant’s personnel file; 2. Posting Notice. The Agency is ORDERED to post this Order Entering Judgment where all the Agency’s employees in the affected facility would have access to it; 3. The Agency is FURTHER ORDERED to pay $529 in attorney’s fees; 4. The Agency is FURTHER ORDERED to place the Complainant back to the Debt and Claim Management position; 5. The Agency is FURTHER ORDERED to promote the Complainant to the GS-13, Deputy Director position or comparable position in Debt and Claims with 2022002194 9 backpay beginning from the time Mr. David Walch was selected for the GS-13 position in question plus interest and the Agency’s financial contribution; 6. The Agency is FURTHER ORDERED to pay the Complainant $25,000 in Non-Pecuniary Damages; 7. The Agency is FURTHER ORDERED to award the One Thousand Two Hundred ($1200) plus interest in performance award that Mr. Lindsay canceled during the period in question. 8. The Agency is FURTHER ORDERED to arrange a sensitive training for the following individuals: […] the Office of General Counsel (OGC) attorney involved in the above-mentioned matter, and the affected division. 9. The Agency is FURTHER ORDERED to cease and desist from engaging in the type of discriminatory investigation and conduct similar to the one found in this matter. On March 26, 2022, the Agency subsequently issued a final order rejecting the AJ’s finding that Complainant proved that the Agency subjected him to discrimination as alleged. The Agency filed the instant appeal. On appeal, the Agency requests the Commission set aside the AJ’s decision on liability and damages and that the Agency’s Final Order rejecting the AJ’s Decision should be affirmed. In the alternative, the Agency requests the Commission remand the matter to the Agency to thoroughly investigate the allegation that the thought process behind the second 1440 Investigation constituted discrimination based on Complainant’s gender. In support of this, the Agency contends that the AJ’s liability finding that the “thought process” leading to the second 1440 investigation was discriminatory is not supported by substantial evidence. The Agency further contends the AJ’s liability finding added a claim that was not contained in the complaint, investigated during the EEO process, or sufficiently addressed via witness testimony during the hearing. The Agency also argues that the AJ’s liability finding undermines the Agency’s obligation to thoroughly investigate claims of harassment. Lastly, the Agency contends the AJ’s finding regarding damages was an abuse of discretion because it was not based on law and facts and it was not proportionate to Complainant’s damages. Complainant contends on appeal that the Agency’s appeal should be denied and the Commission should uphold the AJ’s Amended Order Entering Judgment in its entirety. In support of this, Complainant argues the AJ’s decision finding Complainant was subjected to discrimination and a hostile work environment is clearly supported by substantial evidence in the record. Complainant contends that even if some of the facts found during the second 1440 investigation were technically true, the second investigation, as initiated and conducted, discriminated against Complainant on the basis of sex and constituted a hostile work environment. The Agency argues there is substantial evidence the reason for instigating the second investigation was “because of” Complainant’s sex and that the AJ’s references to “thought processes” behind the decision to undertake the second investigation should be read to refer to the motives of Union EVP, Financial Systems Analyst, and Lead Military Pay Clerk. 2022002194 10 The Agency also contends the AJ’s liability finding does not undermine the Agency's ability to thoroughly investigate all claims of harassment, because the AJ specifically found that the second investigation raised no new claims against Complainant. Lastly, the Agency argues there is ample evidence in the record to support the awarded damages and the Amended Order is not unclear. ANALYSIS AND FINDINGS 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. 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). Framing of the Complaint The Agency argues on appeal that AJ’s liability finding added a claim that was not contained in the complaint, investigated during the EEO process, or sufficiently addressed via witness testimony during the hearing. The Agency states the Second 1440 Investigation was not part of Complainant’s complaint. However, review of Complainant’s formal complaint makes clear that Complainant raised this issue at the outset, including during EEO counseling. Complainant’s formal complaint alleged that the Agency reopened the investigation against him and steered it to arrive at a conclusion that would have Complainant removed from consideration for promotion. He also alleged inappropriate conduct and behavior by Second Investigator. It does not appear that Complainant ever challenged the Agency’s framing of his complaint. Ordinarily, we would find this to be a waiver of Complainant’s right to challenge the framing of the complaint at a later stage. See Norman v. Dep't of Veterans Affairs, EEOC Appeal No. 01A54105 (Oct. 12, 2005) (finding that complainant did not challenge the definition of the accepted issue until after the report of investigation was completed, and therefore the agency properly defined the accepted issue); Thomas v. Dep't of Veterans Affairs, EEOC Appeal No. 0120073634 (Apr. 3, 2009), req. for recon. den'd, EEOC Request No. 0520090465 (July 7, 2009) (deciding to not address complainant's claim that her complaint was improperly framed after complainant failed to respond within seven days of the agency's partial dismissal); Rehder v. U.S. Postal Serv., EEOC Appeal No. 0120091221 (Jan. 14, 2011) (deciding not to address 2022002194 11 disability as a basis after complainant did not object within seven days to the agency's partial acceptance); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120132166 (Sept. 22, 2014) (complainant waived his opportunity to address the framing of his complaint). However, here it would be a subversion of the EEO process to allow the Agency to now benefit from their own improper framing to avoid a liability finding by the AJ on an issue that was clearly raised in the complaint. Therefore, we will proceed to evaluate the AJ’s decision on this issue. Findings The Agency is challenging the AJ’s liability finding that the Agency discriminated against Complainant and created a hostile work environment based on his sex because the Second 1440 Investigation was motivated by discriminatory animus predicated on Complainant’s sex and that this discriminatory investigation resulted in Complainant being reassigned from his supervisory position, excluded from consideration for the GS-13 promotional opportunity, and the cancellation of his performance bonus. 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). Complainant must show that the agency's action was more likely than not motivated by discrimination, that is, that the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Baker v. U.S. Postal Serv., EEOC Petition No. (May 13, 1999). Absent a showing that the agency's articulated reason was proffered to mask discrimination, complainant cannot prevail. Burdine, 450 U.S. at 256; Crosland v. Dep’t of the Army, EEOC Petition No. 03990018 (July 1, 1999); Mongere v. Dep’t of Defense, EEOC Appeal No. 01970738 (March 18, 1999). To prove his hostile work environment 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 his 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). 2022002194 12 Applying these analyses for proving discrimination, we find the record is insufficient to allow us to properly evaluate the AJ’s findings and make a reasoned determination on the merits of Complainant’s complaint of disparate treatment and hostile work environment harassment based on his sex. See Ollie L. v. U.S. Postal Serv., EEOC Appeal No. 2019000141 (Sep. 22, 2020).2 Here we find the record lacking in several aspects. The specific credibility findings of the AJ regarding the hearing testimony supporting this finding are unclear. The AJ stated that, “[t]he Agency throughout this process, the witnesses’ were either lying or presenting information that were not credible.” (Hearing Transcript, October 25, 2021, p. 103:3-5). However, there is no clear explanation of who was lying and how the AJ determined this, or which information was not credible, such that we can properly evaluate the AJ’s credibility determinations and whether this finding is supported by substantial evidence. The AJ appears to find Director of Finance Operation’s testimony lacking credibility and appears to be relying on the testimony of Director DCMO that there were no new allegations, but this is not entirely clear. Although both Director DCMO and former LER testified they were not aware of any new allegations against Complainant to warrant a second 1440 investigation, neither was involved in the decision to undertake either investigation and there is no testimony as to whether they had actual knowledge of what allegations the union raised in the first harassment letter versus the second harassment letter or whether they had actual knowledge of what was investigated in the First 1440 Investigation versus the Second 1440 Investigation. Nor is the record clear enough to allow us to determine whether the AJ’s liability finding is supported by substantial evidence or to determine whether discrimination occurred. The record in unclear as to the differences in the harassment complaints brought by the union, and neither the first harassment letter sent by Union EVP to Director of Finance, nor the second harassment letter sent by Union EVP to HR Specialist are in the record. The First 1440 Investigation Report is not in the record and there is no other statement from First Investigator regarding the scope of his investigation. There is no evidence regarding who actually selected Second Investigator and why she specifically was selected. Based on the foregoing, we find that the record before us in inadequate and we have no choice but to remand this matter for a supplemental investigation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the final decision of the Agency and REMAND this matter for further processing in accordance with this decision and Order below. 2 As there is no appellate challenge to the AJ’s determination that no race discrimination was established, we will not address Complainant’s race claim any further. 2022002194 13 ORDER Within 30 calendar days from the date this decision is issued, the Agency shall commence, with written notification to Complainant, a supplemental investigation into the decision to undertake the second 1440 investigation developing the evidence as explained in more detail in the body of this decision. Once evidence in the form of affidavits and documentary evidence has been collected from management witnesses, the Agency shall give Complainant the opportunity to provide rebuttal evidence. Within 90 calendar days from the date this decision is issued, the Agency shall issue the new report of investigation to Complainant and a new notice providing Complainant the right to request a hearing or an immediate final decision based on the supplemented record. If Complainant requests an immediate final decision, it shall be issued within sixty calendar days from receipt of the request. The Agency is further 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). 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. 2022002194 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). 2022002194 15 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 February 15, 2023 Date