[Redacted], Giselle T, 1 Complainant,v.Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2021004351 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle T,1 Complainant, v. Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2021004351 Hearing No. 530-2019-00113X Agency No. FDICEO-17-029 DECISION On July 28, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 29, 2021, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Institution Examiner, CG-12 at the Agency’s Division of Risk Management Supervision in Blue Bell, Pennsylvania. Report of Investigation (ROI) at 193, 251, and 354. Complainant is a Hispanic/Puerto Rican female. ROI at 353. Complainant stated that she has a physical and mental disability. ROI at 6. Financial Institution Examiners, such as Complainant, perform small-scale and large-scale bank examinations to evaluate for underperformance and fraud. ROI at 469. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2021004351 The duties of Complainant’s position include “participat[ing] as a member of a risk examination team by ensuring that assigned tasks are completed timely[, and] provid[ing] support and assistance to other team members[.]” ROI at 1116. A Supervisory Examiner (Supervisor 1A) supervised Complainant from 2010 through 2014. ROI at 947. Complainant’s first-line supervisor from 2015 until September 2018 was a second Supervisory Examiner (Supervisor 1B). ROI at 921. Complainant’s second-line supervisor at all times relevant was the Field Supervisor, Corporate Manager (Supervisor 2). ROI at 354. A third Supervisory Examiner (Supervisor C) worked at the same location as Complainant but was never Complainant’s direct supervisor. ROI at 937. Based on Agency practice, approximately two years after being hired, an Examiner is typically sent to the Regional Office in New York to complete a Case Manager detail. ROI at 358. The detail provides educational opportunities which often lead to opportunities for career advancement. Id. By that informal industry timeline, Complainant should have been sent for detail in 2012 but was not. Id. “Expressions of Interest,” (or, “EOI”), are often referred to as “Details” as they can be temporary assignments “to a different position for a specified period, with the employee returning to his/her regular duties at the end of the assignment.” ROI at 1453. Complainant was the Examiner-in-Charge (EIC) for the 2011 examination of bank B32. ROI at 356. According to Supervisor 1B, the examination took 375 hours to complete. ROI at 922. Supervisors 1A and 1B held conversations with Complainant during the examination of bank B32. Id. Complainant’s supervisors also communicated with her by email numerous times during the course of the examination of bank B32. See ROI at 225, 227, 229, 237, 242, 275, 285, and 287. Complainant was the EIC for the 2017 examination of bank B1. ROI at 356. According to Supervisor 1B, the examination took 818 hours to complete. ROI at 922. Supervisor 1B stated, and Complainant confirmed, that in 2013, the examination of bank B1, by the prior EIC, took 526 hours to complete. ROI at 356-57. Supervisor 2 and Supervisor 1A held conversations with Complainant during the examination of bank B1. See ROI at 905 and 948-49. Complainant’s supervisors and managers also communicated with her by email numerous times during the course of the examination of bank B1. See ROI at 398, 858-59, and 1405. See also ROI at 1248-53, 1260-61, 1266-81, 1302-16, 1322, 1355-61, and 1404. Complainant could not identify an EIC who was treated more favorably than she was. ROI at 357. Complainant received six performance awards, all awarded while working outside of the Philadelphia Office. Supervisor 1A did not believe that Complainant performed work which met the requirements for or merited a performance award within the Philadelphia territory. ROI at 954. According to Supervisor 2, Case Manager details are provided “as opportunities arise based on examiner availability, skill sets, and the needs of the office.” ROI at 906. Supervisor 1A also stated that a Case Manager detail is not “granted based on seniority.” ROI at 950. 3 2021004351 Complainant asserted that six EICs were all commissioned after Complainant, and all received their case management detail before Complainant. All are non-Hispanic. ROI at 359. Complainant accepted a Case Manager detail in January 2018. ROI at 358. Complainant could not identify an EIC who was treated more favorably than she was. ROI at 357. A Bank Examiner (BE 1) who was commissioned in 2013, asserted he had not gone on a Case Manager detail. ROI at 970. Supervisor 1B asserted that Complainant received more out of office details than her coworkers. According to Supervisor 1B, she “spent considerable time working on details and on other assignments over the past several years, which impacted her availability to participate on a case manager detail.” ROI at 924. He cited to (1) Complainant’s 2013 four month detail to Puerto Rico, (2) her 2014 five month detail to Puerto Rico, (3) her 2015 three month detail to Puerto Rico, (4) her 11 week Division of Insurance and Research detail, and (5) a 2017 Spanish EOI project. ROI at 924. Supervisor 1B issued Complainant a Mid-Year Performance Rating (PMR) of “Satisfactory” and suggested improvements in writing and judgment. ROI at 930. On July 6, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of national origin (Hispanic-Puerto Rican), sex (female), and disability (physical/mental-multiple) from January 2011 to the present. The alleged incidents of harassment include, but are not limited to, the following: 1. Since 2011, Complainant has not been given the same support and guidance during bank examinations that have been given to other examiners; 2. Since 2011, despite Complainant’s stated interest, she has not been given the opportunity for a Case Manager detail, whereas other employees hired after her were assigned a Case Manager detail; 3. From May 2012 through the present, Complainant has been approved for Expressions of Interest (“EOI”) assignments with restrictions, while other examiners have been approved for EOIs without restrictions; 4. In 2012, Supervisor 1A and Supervisor 2 issued what Complainant believed to be an Individual Development Plan (“IDP”); however, she later discovered that it was not an IDP, but a written disciplinary action; 5. Complainant was required to submit a request for sick or annual leave 2 weeks to months in advance along with an extensive explanation email to the Philadelphia administrative office, while other examiners are not subjected to the same requirement; 4 2021004351 6. Complainant was required to request credit hours in advance even though her job duties as an Examiner often require her to work beyond the originally planned hours, while other examiners are not subjected to the same requirement; 7. Since November 2011, Complainant has not been afforded time off to seek adequate treatment for her medical condition, and, when she does take time off, Supervisor 1B criticizes her for the time she takes to seek treatment; 8. Supervisor 1A discouraged Complainant from obtaining Subject Matter Expert (“SME”) designation in a field of her choice (Fraud Specialist Certification), while other examiners, including examiners hired after her, have been granted SME designations of their choice, including Fraud Specialist; 9. Complainant has not received or been nominated for internal Special Thanks and Recognition (STAR) Awards for her work, whereas other examiners have received internal STAR Awards for their work. She has only received and been nominated for STAR Awards from individuals outside of her office in recognition of her performance; 10. Supervisor 1B, Supervisor 1A, and Supervisor C constantly monitor, scrutinize, and criticize Complainant’s work more than other examiners; 11. Supervisor 1A talks to Complainant in rude, intimidating, and condescending manner;2 12. Supervisor 1A diminished Complainant’s morale by talking negatively about her to her co-workers; 13. On December 8, 2016, Complainant was not allowed to attend the office holiday luncheon. Supervisor 1B and Supervisor 1A told Complainant to go to a bank examination, while other examiners and office employees were allowed to attend the office luncheon; 14. Supervisor 1B, Supervisor 1A, and Supervisor C constantly made false allegations regarding the work Complainant performed during bank examinations; 15. On May 8, 2017, Supervisor 1B issued Complainant an unfavorable PMR; and 16. On June 12, 2017, Supervisor 1B informed Complainant that the office will not approve her participation as an instructor, while other examiners with less experience than her have been allowed to participate as an instructor. 2 Complainant withdrew claim 11. See ROI at 368. 5 2021004351 The Agency conducted an investigation into the complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The parties had an opportunity to engage in discovery. On July 6, 2020, the Agency filed its Motion for Summary Judgment (MSJ). Complainant responded on July 20, 2020 (Compl. Oppo. and MOL in Oppo.). The Agency filed a reply on July 27, 2020 (MSJ Reply). The AJ assigned to the case determined that the record had been adequately developed. The AJ fully adopted and incorporated the facts of the case as set forth in the Agency’s motion, asserting that Complainant did not dispute almost all of those facts. The AJ viewed the facts in the light most favorable to Complainant and found that Complainant failed to offer any evidence, aside from her own speculation, that the facts as presented by the Agency should not be believed, or were otherwise disputed, thus requiring a hearing. On June 21, 2021, the AJ issued a decision without a hearing pursuant to 29 C.F.R. § 1614.109(g) (2016). The AJ noted Complainant’s belief that she was harassed “because [I'm] the only Puerto Rican Examiner at this Office; I don't use/speak English as everyone else or I don't write like them, and [I’ve] an accent so they treat me differently.” ROI at 357. The AJ observed that Complainant reiterated a similar sentiment multiple times in support of her harassment claims. ROI at 359, 361- 68, and 370-72. The AJ asserted that some of the incidents of harassment Complainant claimed in her initial complaint were alleged excessive scrutiny from management, failure to receive a STAR award, and receiving a detail with restrictions. MSJ at 7-10. However, observed the AJ, there were insufficient facts to establish a prima facie case of harassment. According to the AJ, Complainant failed to show that the alleged harassment related to her protected traits. She also failed to point to evidence which supported her claims. The AJ explained that Complainant’s Opposition response only discussed three incidents: (1) the denial of the instructor position, (2) Agency emails regarding Complainant’s receipt of a performance award, and (3) “all-across-the-board hostility from management in the Philadelphia Office.” MOL in Oppo. at 12. The AJ observed that Complainant made conclusory statements without any evidentiary support, asserting that statements based merely upon information and belief do not satisfy the summary judgment standards as they do not set forth such facts as would be admissible in evidence. According to the AJ, the mere fact that Complainant was one of two people of her national origin in the Harrisburg and Philadelphia offices proved insufficient to create a nexus that any of the events occurred because of her national origin. See MSJ Reply at 2. Significantly, observed the AJ, Complainant conceded that she did not complain to management about any alleged harassment. ROI at 369. 6 2021004351 The AJ noted Complainant’s admission that her Hispanic male coworker was approved for the EOI as well. ROI at 359. According to the AJ cited to record evidence that described the EOI a “Work-in-Place (WIP) collateral duty project[,]” upon which participants could “work up to ten hours per week on a module[,]” “during [the] regular work schedule.” ROI at 1204-05 (Email 1/3/17 EOI Selection). The AJ determined that there was no evidence that Complainant was adversely treated due to her national origin, sex, or disability, nor that other employees outside her protected traits were treated more favorably. Regarding claim 9, the AJ noted management’s assertions that the STAR awards was not an employee entitlement. ROI at 927 and 954. According to the AJ, there was no evidence in the record to suggest that the Agency failed to nominate Complainant for a STAR award based on her protected traits or due to discriminatory animus. The AJ cited to Supervisor 1B’s explanation that a peer could recommend another peer for a STAR Award. ROI at 366 and 927-28. The AJ determined that there was no evidence that Complainant’s office peers nominated her for a STAR Award. Regarding supervisory review of Complainant’s work (claim 10), the AJ noted evidence showing that such reviews and provision of regular feedback was part of the normal course of doing business. ROI at 913. According to the AJ, Complainant’s position description states that her duties are “performed under the guidance of higher-graded specialists/examiners and/or supervisors.” ROI at 1116 and MSJ at 15. The AJ also noted Supervisor 1B’s statements that he reviewed Complainant’s work because he received critical feedback from Complainant’s team members. ROI at 928. The AJ determined that there was no evidence that the review of or feedback on Complainant’s work was motivated by her protected traits or discriminatory animus. The AJ also observed that there was no evidence that Complainant was subjected to excessive scrutiny. The AJ cited to Commission precedent, stating that a supervisor questioning or confronting an employee about her/his work duties is a "common workplace occurrence” that does not rise to the level of harassment. Regarding Complainant’s work performance and the 2017 PMR in claim 12, the AJ observed that Complainant could not point to any specific example(s) of a negative comment from Supervisor 1A. ROI at 369. The AJ determined that there was no evidence to infer that Complainant was subjected to unlawful disparate treatment. The AJ noted Complainant’s stated belief that during a 2017 PMR discussion, Supervisor 1A compared Complainant’s work to her coworkers’ because of her national origin. ROI at 368. According to the AJ, Complainant speculated that Supervisor 1A “discourage[d] examiners to work with me” based on her protected status. Id. 7 2021004351 The AJ observed that Complainant “can[not] point out a specific example of [Supervisor 1A] saying anything negative about [Complainant] in front of [her].” ROI at 369 and MSJ at 16. The AJ also noted Supervisor 2’s statements that he never witnessed Supervisor 1A speak negatively about Complainant to her coworkers. ROI at 913 and MSJ at 16. Supervisor 1A also asserted that she provided feedback only on Complainant’s examination performance and she never held a meeting with EICs to talk negatively, or at all, about Complainant. ROI at 949 and 956. The AJ determined that there was no evidence of discriminatory animus or motive. The AJ addressed Complainant’s assertions in claims 14 and 15 that her 2017 unfavorable Mid- Year Performance review and denied participation as an instructor that June resulted from her accent. MOL in Oppo. at 2. The AJ noted Complainant’s admission that Mid-Year Performance reviews are unofficial. Regarding being denied the instructor position, the AJ asserted that Complainant simply alleged this was because she was the only Puerto Rican employee in the office. ROI at 357-72 and MSJ at 39. The AJ cited to record evidence showing that, prior to her request to be an instructor, Complainant’s most recent Performance Rating included a “2” rating for her application of “Analytical Skills,” a “2” rating on “Communicates in Writing[,]” and a “Below Target” rating in “Judgment.” ROI at 244. The AJ noted Complainant’s contention regarding Supervisor 1B’s statement that her “writing skills were not up to par[, she] had judgment and communications issues[, and]...the B1 exam was an issue.” ROI at 371 and MSJ at 35. The AJ cited to record evidence showing that Complainant’s review reflected an overall favorable performance for the first half of 2017. i.e., Complainant’s “Overall Performance Rating” was a 3, an “Accomplished Practitioner.” ROI at 244. The AJ observed that there were no notes in the review to suggest that Complainant's accent caused concern. The AJ stated that Complainant had worked at the Agency since 2010 and there was no evidence to suggest that her accent was ever a problem. The AJ reiterated that there was no evidence of discriminatory animus or motivation on this issue. Regarding the denied participation as an instructor, the AJ cited to record evidence demonstrating that most examiners in the Philadelphia Territory had not participated as instructors. MSJ at 223- 25. The AJ observed that there were only three new Instructors from 2011 through 2017. MSJ at 37. Regarding Complainant specifically, the AJ noted Supervisor 1B’s statement that, based on Complainant’s oral presentation and public speaking skills as well as her recent PMR mid-year rating, he did not feel Complainant had the skills to be an instructor. According to Supervisor 1B, he communicated with Complainant that he would be supportive of her instructing if she strengthened her public speaking skills. He also offered her suggestions, such as toastmasters and Personal Learning Account (PLA) training for ways to improve her skills. ROI at 931. The AJ determined that Complainant failed to rebut the Agency’s rationale for not having selected her through 2017. Nor could Complainant show that the Agency’s decision was based on her protected traits, motivated by discriminatory animus, or a pretext for discrimination. 8 2021004351 The Agency subsequently issued a final order on June 29, 2021, adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, among other things, Complainant reiterates her allegations, stating that the AJ’s Decision imprecisely characterizes her claim. She states that the AJ’s decision failed to meet the substantial evidence standard, and should be reversed. Complainant argues that the record has several examples showing that the Agency’s conduct was motived by a discriminatory animus. Complainant asserts that after her 11 years of employment at the Agency, Supervisor 1B’s requirement that she take a public speaking course prior to becoming an instructor is a concrete example. According to Complainant, the requirement to practice public speaking could have only been based on her accent which readily identifies her as someone with a foreign national origin. Complainant asserts that as one of only two Hispanic examiners out of seventy (and only one female Hispanic examiner), it is not her failure to receive a STAR award, but her frequent recognition outside the Philadelphia office compared to the absence of such recognition in her office that points to discrimination. Complainant cites to emails that she states demonstrate not just an apathy towards her, but outright hostility from the management. She argues that it is the combined numerator of “2” and denominator of “70” that makes the figure significant with respect to workplace discrimination; and asserts that the Philadelphia Office generally showed a pattern of failing to support her. According to Complainant, management questioned her awards, including her diversity award; and were reluctant to enter an award at the $500 monetary amount recommended. See Complainant’s Appeal at 3-5 and 9. On appeal, among other things, the Agency expresses agreement with the AJ’s decision, asserting that the AJ properly granted the Agency’s Motion for Summary Judgment. According to the Agency, viewing Complainant’s allegations alone or in their totality, Complainant could not demonstrate that she was subjected to a discriminatory hostile work environment; and the AJ appropriately rejected Complainant’s national origin, gender- and disability-based hostile work environment claims. Regarding Complainant’s assertions that management questioned her awards, the Agency states that in of the emails that Complainant identified, Supervisor 1A was wondering if Complainant did something outside of her commissioning track about which Supervisor 1A was unaware. The Agency asserts that Supervisor 2 was confused as Complainant had not been a “CU” (undefined acronym) employee for 3 years.” The Agency also asserts that Supervisor 1A was trying to figure out why Complainant got one of the awards in question in order to reflect that in Complainant’s performance rating. 9 2021004351 The Agency states that Supervisor 1A questioned the diversity award amount because it was from the Agency’s Washington D.C. office, but the money would come out of the Philadelphia Field office. According to the Agency, the characterization of management as “reluctant to enter an award at the monetary amount recommended” is misleading at best. The Agency asserts that Complainant had received $500 awards but, in that circumstance, a $300 award was consistent with what the office would have done for other examiners with feedback similar to Complainant’s. According to the Agency, managers have a responsibility to review a recommendation and provide an award amount that management felt was commensurate with an employee’s assignment and performance. ANALYSIS AND FINDINGS Claims Not Raised on Appeal As a preliminary matter, we note that although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. See Equal Employment Opportunity Management Directive (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). As such, this decision will not address claims 13 and 15 because Complainant did not raise those claims on appeal. Notably, Complainant did not mention disability as a basis in her appeal statement. Therefore, this decision will not address Complainant’s claims under that basis. AJ’s Issuance of a Decision without a Hearing 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 nonmoving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review...”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. 10 2021004351 Hostile Work Environment To merit a hearing on her claim of discriminatory harassment, Complainant must raise a genuine issue of material fact as to whether: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The anti-discrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to ensure that her harassment claim survives summary judgment, Complainant must present enough evidence to raise a genuine issue of material fact as to whether she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also raise a genuine issue of material fact as to whether the challenged management actions were motivated by unlawful considerations of her national origin. Indicators of such discriminatory or retaliatory animus typically include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Only if Complainant raises genuine issues of material fact as to both of those elements, hostility and motive, can the question of Agency liability for discriminatory harassment be brought before an AJ for a hearing. Here, Complainant asserted that as one of only two Hispanic examiners out of seventy (and only female Hispanic examiner), it is not her failure to receive a STAR award, but her frequent recognition outside the Philadelphia office compared to the absence of such recognition in her office that points to discrimination. Supervisor 1A did not believe that Complainant performed work which met the requirements for or merited a performance award within the Philadelphia territory.” ROI at 954. Supervisors 1B and 2 asserted that because Complainant spent considerable time outside the office (she did more exams outside the territory), it would not have been unusual for an outside office to have recommended her for awards. ROI at 912 and 928. Complainant also asserted that management questioned her awards, would not enter for her the recommended monetary amount (500 dollars), and were not always supportive of her efforts. 11 2021004351 Supervisor 1A did not know what the award recommended for Complainant from outside her office was for; and Supervisor 1B they stated that the 300 dollars that management recommended for Complainant was consistent with awards received by other employees with performance similar to Complainant’s. Complainant had also received previous awards in the amount of 500 dollars. See MSJ at 217 and MSJ Reply at 10 and 27. Moreover, management provided support and guidance to Complainant. See, for example, ROI at 922, 931, and 993. Beyond conclusory and speculative assertions, Complainant has presented no other affidavits, declarations, or unsworn statements from other witnesses nor documents which contradict or undercut the explanations provided by management or which would cause us to doubt their veracity as witnesses. Ultimately, we find that Complainant failed to establish the existence of a factual dispute sufficient to give rise to a genuine issue of material fact. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination or a hostile work environment by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). 12 2021004351 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for 13 2021004351 filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 13, 2023 Date