[Redacted], Kory V.,1 Complainant,v.John P. Roth III, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 21, 2021

Appeal No. 2020000534 (E.E.O.C. Jul. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kory V.,1 Complainant, v. John P. Roth III, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020000534 Hearing No. 410-2019-00011X Agency No. 9R1M1741125 DECISION On September 18, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 21, 2019, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not subjected to discrimination and/or harassment as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Production Analyst, GS-1101-11 at the Agency’s F-15 Aircraft Maintenance Squadron, (AMXS) in Robins Air Force Base, Georgia. On November 11, 2017, Complainant filed an EEO 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. 2020000534 2 complaint alleging that the Agency discriminated against him on the bases of race (African- American), color (Black), age (49), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. on July 18, 2017, upon receiving feedback, Complainant became aware that he had not been selected for the Production and Material Support Supervisor, NH-0301-03 position, under vacancy announcement number 9R-ROBINS-194 7700-935699-PW; and 2. Complainant amended his complaint to include a claim that he was subjected to retaliatory harassment based on his current complaint when the following events occurred: (a) on November 15, 2017, Complainant received a Notice of Decision to Reprimand dated November 14, 2017, signed by his third level supervisor (S3); (b) on December 14, 2017, Complainant was moved to another cubicle and given a verbal No Contact Order (NCO) to have no contact with an identified coworker (C1); (c) on December 20, 2017, Complainant was moved to Functional Test; (d) on January 8, 2018, Complainant was issued a written NCO to have no contact with C1; (e) on June 7, 2018, Complainant was issued NCO Restrictions, adding additional language to the existing NCO issued on January 8, 2018; and (f) on June 7, 2018, a meeting was scheduled with Complainant and Labor Relations, which was to occur in Building 47 to set Complainant up to violate the NCO. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing. On July 2, 2019, the assigned AJ issued an Acknowledgment and Notice of Proposed Summary Judgment (Notice), informing the parties that he had determined, sua sponte, that the case may be appropriate for summary judgment in favor of the Agency. The Notice outlined the legal standard for summary judgment, stated the claims presented, and provided the applicable substantive legal standards. The Notice further described the grounds upon which the AJ based his determination that the case could be summary judged. The parties had until July 17, 2019, to respond to the Notice. The AJ informed the parties that unless a party demonstrated that there was a genuine issue of material fact or credibility in dispute, no hearing would be held. 2020000534 3 The Agency responded to the Notice by filing its Motion for a Decision Without a Hearing on July 5, 2019. Complainant responded to the Notice on July 16, 2019, when he filed his Response to the Proposed Summary Judgment, which included 86 pages of attached documents. Both Agency’s Response and Complainant’s Response were added to the record and considered by the AJ. The AJ stated that Complainant’s Response failed to show that there was a genuine issue of material fact or dispute relating to credibility. Over Complainant's objections, the AJ granted the Agency’s July 5, 2019, Motion for a Decision Without a Hearing and issued a decision without a hearing on July 18, 2019. In the decision, the AJ noted that the following fact were not in dispute. Regarding Claim 1, Complainant applied and was referred for the position of Production and Material Support Supervisor. Complainant was not selected for the position. A younger white candidate (Selectee), was the successful candidate. Complainant expressed his feeling that he was better qualified than Selectee for the position. Complainant did not believe Selectee had the relevant experience to even be considered for an interview for the position. Complainant stated his understanding that Selectee has only worked in the industrial environment for one year and had never supervised anyone. Complainant indicated that while he was an Analyst at the time of the interview, he was a supervisor from 2011 to 2016, and was also a supervisor while in the military. Complainant stated that when the selection process was over, he asked to meet with S3 for a feedback session. Complainant stated that S3 did not bring the matrix scores. Complainant stated that S3 told Complainant that Complainant did well on the first question but did not answer the other three questions clearly, indicating that S3’s overall tone and demeanor were off- putting. Complainant also expressed his feeling that neither S3 nor the other panel members were subject matter experts, so they did not understand that Complainant had answered the questions clearly or that everything Complainant had stated was relevant to the position for which he interviewed. Complainant expressed his feeling that if he had not filed a prior EEO complaint, his relationship with S3 would have been different and S3 would have had more of an interest in supporting and looking at Complainant’s qualifications, rather than dismissing them. Complainant stated that he was scored low on the matrix for relevant experience but that he believed every job he had held within the industrial environment, both military and civilian, has been within this field. He also indicated that he had a master’s degree. Complainant indicated that because he had no access to his interview scores, and because the panel was all white, and Selectee was also white and, Complainant asserted, not qualified, Complainant could only see his non-selection as discrimination against him based on his race. Complainant indicated that it is possible that interviewees are not told their scores because something is being covered up. He indicated that the only way to find out such scores was to file an EEO complaint or a grievance. Complainant also felt that his age was also a factor because 2020000534 4 Selectee is younger, with less experience; and Complainant indicated that he has heard in briefings that management was trying to get a younger and fresher group of employees. S3 stated that Complainant scored fifth out of the ten candidates based on his interview; and that after the scores were all tallied, Complainant was number five on the overall list as well. S3 stated that Selectee had the second highest resume score and the highest interview score. Further, when his scores were tallied, Selectee was number one overall. S3 explained the points awarded to the Selectee and Complainant. He noted that on their resumes for relevant experience, Selectee received 20 points and Complainant received 5. On diversity of experience, Selectee received 10 points and Complainant received 5. On college education, Selectee received 10 points and Complainant received 12. On professional military education, Selectee received 0 and Complainant received 7. On supervision, Selectee received 5 points and Complainant received 20. For the interviews, Selectee received 104 points and Complainant received 64. Overall, Selectee received a rating of 229 points to Complainant’s 113 points. S3 also explained that for relevant experience, the panel only considered experience within the last 10 years. S3 stated that Complainant did get extra points for his post-bachelor’s degree education. S3 stated that for experience, the panel looked at NH-03 (presumably agency grade level) at any tier and then how many organizations each applicant had spent at least a year in at a specific grade. S3 indicated that for professional military education, it was strictly professional military education the interviewees were graded on, not supervisory experience. S3 confirmed that he met with Complainant after the process was over. S3 indicated that he explained to Complainant a good process for preparing for an interview. S3 also indicated that he told Complainant that the interview panel was looking for key words such as “I led, I directed, I supervised, I got these results.” S3 stated that this was the same standard identical feedback S3 has given to dozens of other people in the past. S3 asserted that there were four subject matter experts on the panel. S3 stated that as per the Master Labor Agreement, there is no requirement to provide scores to the applicants. S3 confirmed that he has never provided scores in any feedback or mentoring session he has ever held. The Investigator noted that Complainant was offered the opportunity but did not provide a rebuttal response to management statements. Complainant’s first-level supervisor (S1), who was not involved in the selection process and who indicated that she had no knowledge of the selection criteria, speculated, without evidence, that Complainant may have been subjected to discrimination when Complainant was not selected for the position at issue. S1 stated that the position was announced twice. S1 noted that Complainant made the certificate the first time, but the position was not filled. S1 also speculated, without evidence, that she understood why Complainant may have believed that Complainant has been discriminated against because Complainant participated in prior EEO activity due to some disciplinary actions that have been taken against Complainant in the office since filing a complaint. Regarding Claim 2(a), Complainant alleged that he received a Notice of Decision to Reprimand signed by S3. Complainant maintained that the reprimand was not justified because he believed that he was singled out. Complainant alleged that the verbiage in the reprimand is not true. 2020000534 5 Complainant asserted that a second coworker (C2) (white female) engaged in “heavier” dialogue a few weeks after the alleged incident and was not reprimanded. Complainant felt that he has been labeled as a troublemaker because he filed an EEO complaint. The Deputy Director (DD1) stated that Complainant was disrespectful, belligerent, and unprofessional towards him in a meeting; and that DD1 submitted a memorandum for record to S3 for action. DD1 stated that S3 made the decision to reprimand Complainant. DD1 maintained that the reprimand was issued because of Complainant’s conduct and was not retaliatory. S3 provided supporting statements, stating that Complainant failed to report to DD1 to have a private conversation regarding Complainant’s alleged unprofessional conduct. Both C1 and C2 were present at the meeting in question. C1, affirmed by C2, stated that Complainant got upset during an argument and asked S1 if he could be excused twice. S1 did not respond. DD1 asked why Complainant wanted to leave and stated that Complainant could be excused. DD1 asked that Complainant come by DD1’s office before Complainant left for the day. C1 indicated his belief that Complainant’s conduct was not unprofessional; just an emotional response. Regarding Claim 2(b), Complainant alleged that he was moved to another cubicle and given a verbal NCO to have no contact with C1. Complainant stated that the alleged management actions were not appropriate because discipline starts with the supervisor; and that S1 had no input in the decision. Complainant stated that C1 had previously apologized for the argument (the reason for the discipline) and Complainant accepted the apology. Complainant stated his belief that S3’s attempt to mediate 75 days later and moving Complainant to Function Test was motivated by Complainant’s EEO activity. C1 indicated that an argument ensued after C1 interjected with a suggestion as Complainant was training a new employee. C1 asserted that Complainant “jumped up” and aggressively took a step toward C1. C1 asserted that in a loud voice, C1 stated that Complainant needed to sit down, and Complainant responded that Complainant was just getting ready to leave. C1 admitted that he apologized for speaking that loud, explaining that he was caught off guard by Complainant’s sudden movement. C1 also asserted that he asked for the NCO. S1 stated that C1 was also issued an NCO by S2 on the same day as Complainant; and that C1 was also moved to another cubicle. S1 explained that S3 told S1 to move the two employees because both Complainant and C1 told S1 that they felt unsafe. Regarding Claim 2(c), Complainant alleged that he was moved to Functional Test, a division in a separate building. Complainant indicated his feeling that the move away from his coworkers and out of the building has painted him as a troublemaker. Complainant stated that the move has added more tension to the environment and has affected his home life. Complainant asserted that he verbally reported the move as harassment to management. 2020000534 6 S3 explained that S1 initially moved Complainant into a different cubicle in the same office but Complainant subsequently volunteered to move to Functional Test, which is in a different building, since that was the area that Complainant supported. Regarding Claim 2(d), Complainant alleged that he was issued a written NCO in addition to the verbal NCO. Complainant indicated that he did not understand why the written NCO was issued. S3 stated that he made the decision to issue the NCO in writing because Complainant and C1 both admitted that they did not feel safe. S3 added that it is typical to follow a verbal NCO order with a written order. Regarding Claim 2(e), Complainant alleged that he was issued an NCO Restriction which added additional language to the existing NCO. Complainant maintained that he did not request revisions be made to the NCO, noting that S1 told him that she wrote and issued the revisions at the direction of management. Complainant indicated that after the revised NCO was issued, he received an email stating that management had decided it was best for Complainant not to go in Building 47. S3 stated that S1 added language to the NCO because C1 brought to S3’s attention that C1 felt intimidated and threatened by Complainant coming into Building 47. S3 asserted that Complainant’s prior EEO activity was not a factor. C1 confirmed S3’s testimony, explaining that Complainant typically visited Building 47 right outside of C1’s office to have conversations with S1. C1 stated that he felt this was a violation of the NCO; and that he felt intimidated by Complainant’s close presence. Regarding Claim 2(f), Complainant alleged that a meeting was scheduled with Complainant and Labor Relations, which was to occur in Building 47 to set Complainant up to violate the NCO. Complainant indicated that requiring him to report to the building which he was restricted from entering was continued harassment. S3 explained that Complainant was invited to a meeting in Building 47 because the scheduler of the meeting did not know that Complainant was subject to an NCO that precluded Complainant from entering Building 47, not because someone in management was trying to “set him up.” In rebuttal, Complainant maintained that S3’s actions were retaliatory in that Complainant went from having nothing in his personnel records to subsequently being issued a reprimand, suspension, subjected to false accusations, NCOs, getting degraded in meetings, called names, moved away from coworkers and banned from buildings after Complainant initiated his EEO complaint regarding the non-selection. With respect to Claim 1, the AJ noted that Complainant’s disagreement with how his resume was scored did not establish discriminatory animus. 2020000534 7 Moreover, the AJ observed, S1’s statements indicating that she believed Complainant was subjected to discrimination were no more than unsubstantiated speculation. The AJ added that speculation by a third party that discriminatory animus motivated an action is not sufficient to establish discriminatory motivation. Thus, the AJ determined that Complainant’s Response to the AJ’s Proposed Summary Judgment did not identify evidence that could establish Complainant’s non-selection or the other actions in question (alleged in Claims 2(a)-(2f)) occurred because of Complainant’s protected classes. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his Appeal Brief, among other things, Complainant reiterates his allegations. Complainant asserts that the interview questioning was based on subjective criteria. He indicates that irregularities exist in the scoring, asserting that he should have been awarded 40 more points for his resume. Complainant also argues that the Agency witnesses’ inability to properly calculate Complainant’s resume score, errors in calculating Complainant’s total scores (which Complainant indicates was 119), and the Agency’s claim that Selectee received more points than Complainant (which is reflected as 104 according to S3’s calculations), establish pretext. Complainant requests that the Commission reverse the decision and remand the case for a hearing, asserting that he established a prima facie case of retaliatory harassment. In its Appeal Brief, among other things, the Agency clarifies that Complainant received a total of 113 (not 119) points; and that Selectee received 184 points (not 104), admitting calculation errors. The Agency indicates that adding 40 points to Complainant’s resume score would not change the selection because Selectee received 45 points for his resume and 184 points for his interview for a total of 229 combined scores. Adding Complainant’s desired 40 points to his 113 total combined scores would have resulted in 89 points for Complainant’s resume and 64 points for his interview, for a new total of 153 combined scores which would still be lower than Selectee’s overall scores. The Agency also reiterates its explanations regarding Complainant’s other allegations, indicating that Complainant did not provide any substantiating evidence. The Agency requests that the AJ’s decision in its favor be affirmed. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. 2020000534 8 In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant requests that the Commission reverse the decision and remand the case for a hearing. We find that the record had been adequately developed; Complainant identified no genuine issues of material facts in dispute to warrant the requested reversal. Neither did Complainant present any evidence to corroborate his beliefs or assertions on appeal regarding his claims. Ultimately, the AJ correctly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment - Claim 1 The Commission has adopted the burden-shifting framework for analyzing claims of discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020000534 9 The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found. for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. He must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden is again on Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, it is Complainant’s obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Upon review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for Complainant’s non-selection. Specifically, management stated that Complainant was not selected for the position to which he applied because his combined total score from his resume and interview was less than that of Selectee based on the scoring matrix. We turn to Complainant to establish that the Agency’s reasons are pretext. Complainant disagreed with how his resume was scored, indicating that his resume was worth an additional 40 points. However, as the Agency noted, even adding 40 points to Complainant’s combined total scores, which would add up to 153, would not equal Selectee’s 229 combined total scores. Complainant argued that he was more qualified than Selectee, citing his years of experience and master’s degree. However, Complainant did not establish how his qualifications were more superior to those of Selectee, only stating that Selectee was not qualified. Importantly, included in the investigative files are detailed explanations on how each of the factors for the resumes and interviews were scored for Complainant and the selectee. The resume scores corroborate the Agency’s explanations because they reflect that Complainant did score higher than the selectee in areas such as education and supervision experience. However, the record indicates that Complainant lacked the relevant experience, including his prior experience in the industrial complex; and the diversity of experience that the selectee possessed. Notably, the record reflects that Complainant’s experience was limited to the one organization. The Agency also provided a matrix with combined scores of the applicants. See Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004), cert. denied, 546 U.S. 960 (2005) (stating that Complainant failed to demonstrate that his own qualifications "were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [Selectee] over the [complainant].") 2020000534 10 Complainant also asserted that the interview questioning was based on subjective criteria. However, the Commission has held that complainant cannot show pretext merely by arguing that the Agency's decision was based on subjective criteria being used. He must show that the subjective criteria used was so unrelated to the position at issue that its use was a subterfuge for discrimination. See Denney v. City of Albany, 247 F.3d 1172, 1185 (11111 Cir. 2001) (indicating that a subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion.) More importantly, EEOC case law is replete with cases supporting the principle that, absent a showing that Complainant was the best-qualified candidate, management did not demonstrate discriminatory animus when the most qualified candidates were selected. See e.g., Judson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141750 (May 26, 2016) (declining to find a pretext of discriminatory action when the Complainant was not selected due to his application rating of five out of eight candidates); Whitfield v. Dep't of the Army, EEOC Doc. 0120082612 (Jul. 11, 2012) (finding that the Complainant failed to show discrimination when the Complainant's qualifications were not plainly superior to the selectees for two separate postings); King v. Dep't of Veterans Affairs, EEOC Appeal No. 012022423 (Nov. 2, 2012) (Complainant was not ranked among the top candidates and presented no evidence of pretext). Therefore, Complainant has failed to show that his non-selection was based on discriminatory or retaliatory animus. Retaliatory Harassment - Claim 2 It is well-settled that harassment based on an individual’s prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he engaged in prior EEO activity; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, Complainant has alleged that he was issued a reprimand; that he was issued verbal and written NCOs, including an NCO with revisions; that he was moved to a different office building; and that he was invited to a meeting in the office building which he had been prohibited from entering. However, management’s explanations demonstrate that these alleged actions were the result of conduct that management considered unprofessional and belligerent; Complainant’s argument with C1 which led to both employees being moved as they admitted to feeling unsafe; and an error by a meeting scheduler. 2020000534 11 Complainant maintained that S3’s actions were retaliatory in that Complainant went from having nothing in his personnel records to subsequently being issued a reprimand, suspension, subjected to false accusations, NCOs, getting degraded in meetings, called names, moved away from coworkers and banned from buildings after Complainant initiated his EEO complaint regarding the non-selection in Claim 2a. As to Claim 2b, the record indicates that, following Complainant’s altercation with C1, management moved both Complainant and C1 and issued both an NCO. Complainant volunteered to be moved to a different office building. Complainant also asserted that C2 was treated differently. However, the record reflects that C2 had also engaged in prior EEO activity. Therefore, upon review, we find that Complainant has not shown that the Agency considered his prior EEO activity with regard to Claims 2b, 2d, and 2e. We find that Complainant has failed to describe any management action that would dissuade future participation in the EEO process or that impacted any terms or conditions of Complainant’s employment. Rather, Complainant has described general incidents that amount to workplace disputes and tribulations that do not rise to the level of sufficiently material to establish a hostile work environment. See Marciela P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141945 (Oct. 21, 2016). Also, while a complainant can challenge actions as retaliatory even though they do not affect a term or condition of employment, such actions must be sufficiently harsh or punitive to deter protected activity. Thus, even though a complainant may find interactions regarding work matters irritating, if they represent ordinary, everyday supervisor-employee communications and there is no evidence of offensive or abusive conduct, they would not rise to the level required to establish retaliatory harassment. See e.g., Richardson v. Dep't of Labor, EEOC Appeal No. 0120110183 (Mar. 1, 2011) (noting that interaction with a supervisor over time and attendance, while "annoying," was not abusive); Chambers v. Dep't of Hous. and Urban Dev., EEOC Appeal No. 0120073938 (Mar. 1, 2010) (affirming the AJ's finding that management's failure to notify complainant of office matters was not actionable retaliation absent injury or harm). Such is the situation in the instant complaint. We also find that S1’s speculations, without corroborating evidence, do not support a finding that Complainant was subjected to discrimination or retaliatory harassment. We therefore find no basis to reverse the AJ’s summary judgment decision. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s final order. 2020000534 12 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). 2020000534 13 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations July 21, 2021 Date