Alexander A.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 31, 2020

2019000040 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexander A.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2019000040 Hearing No. 570-2016-01361X Agency No. AREUKA114DEC04633 DECISION On September 14, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), 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 issues presented concern whether the Administrative Judge properly issued a decision without a hearing and determined that Complainant had not established that he was subjected to discrimination. 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. 2019000040 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-11, at the Agency’s Theater Contracting Center (TCC), 409th Contracting Support Brigade, in Kaiserslautern, Germany. On February 4, 2015 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and age (over 40). Complainant further amended his complaint on September 7, 2015, to include an additional claim and reprisal as a basis. The Agency accepted the following claims for investigation:2 1. On December 10, 2014, the Deputy Director and the Small Purchases Division Chief informed Complainant that he was lacking source selection experience and would not be interviewed for the position of GS-1102-12, Contract Specialist, Announcement Number: EUHU1441625611274257; 2. On March 12, 2015, Complainant injured his lower back while moving his office equipment from Room 109 to Room 106 on the direction of the Deputy Director for the alleged purpose of intimidation and reprisal; 3. In March 2015, the Deputy Director denied Complainant Leave Without Pay (LWOP) until he was offered a job in the Priority Placement Program (PPP); and 4. On August 28, 2015, he refused to sign his annual and specialist evaluations DA Form 7222 prepared by the Deputy Director (rater) and the TCC Director (senior rater) for unprofessional and undeserved bullets in Part V - Values of his annual evaluation and in Part IX of his special evaluation. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant’s objections, issued a decision without a hearing on June 29, 2018. In issuing the decision, the AJ found that the Agency had legitimate, nondiscriminatory reasons for its actions. 2 Complainant also alleged in his formal complaint that the Agency discriminatorily disqualified his application for Vacancy Announcement Number: EUHU131049621145921. The Agency, however, dismissed this claim for untimely contact with an EEO Counselor. Because Complainant did not raise this claim before the AJ or on appeal, we will limit our analysis to the claims listed above. 2019000040 3 For claim 1, the AJ noted that Complainant’s supervisor found Complainant’s limited skillset to be insufficient for the GS-1102-12 position and that there were additional aspects of the GS-1102- 12 position that Complainant needed to be able to handle, such as having the ability to work independently and bring matters to an 85 percent solution. The AJ also noted that Complainant’s supervisor had concerns with Complainant’s ability to work outside of his comfort zone. With respect to claim 2, the AJ noted that Complainant’s supervisor explained that she instructed Complainant to move from Room 109 to Room 106 because Room 109 was not appropriate for Complainant because personnel in that office worked on issues related to personnel and potential military exercises. Regarding claim 3, the AJ noted that Complainant’s supervisor cited low staffing levels as the basis for denying Complainant’s request for LWOP for an undetermined amount of time. As for claim 4, the AJ noted that management had revised Complainant’s evaluation appraisals to include language more aligned with Complainant’s military background, but Complainant refused to sign the appraisals, which were above standard and not negative. The AJ concluded that Complainant failed to persuasively show that the Agency’s articulated reasons were pretext for discrimination. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant then filed this instant appeal. CONTENTIONS ON APPEAL Complainant contends that the AJ should not have issued a decision without a hearing and requests that the Commission reverse the AJ. The Agency requests that the Commission affirm its final decision adopting the AJ’s decision. 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. 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, 2019000040 4 and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS 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, the record shows that the AJ decided sua sponte to issue a decision without a hearing in favor of the Agency. Prior to issuing the decision, the AJ directed Complainant to show cause as to why a decision without a hearing should not be issued. In his response to the AJ’s Notice of Proposed Summary Judgment, Complainant contended that he sufficiently alleged a prima facie case of discrimination and could, with the benefit of discovery, show that “he was denied a fair opportunity to compete, primarily because of his race, for the position of Contract Specialist and promotion to a GS-12 position for which he applied and was well qualified.” In this regard, Complainant disputed the Agency’s characterization of his qualifications, and he contended that there was a dispute as to whether he applied for the vacancy announcement once it was officially announced. Complainant further contended that the Agency’s mere assertion that it hired the best qualified candidate is insufficient to satisfy its burden of production. He maintained that discovery would allow the parties to compare his qualifications with the other applicants. Complainant also asserted that the Agency subjected him to a hostile work environment and reprisal after he engaged in protected EEO activity, including, but not limited to: twice denying him interviews for promotion to GS-12 positions; denying his request to curtail his contract and immediately enter the Priority Placement Program; forcing him to transfer to a different 2019000040 5 department; denying his request for LWOP; openly attempting to intimidate and humiliate him in the presence of other employees; falsely accusing him of intimidating his coworkers; and denying him income by categorizing his September 2015 leave request as LWOP instead of paid leave as he requested. Complainant further maintained that “even without the additional discovery that is needed, there is presently evidence in the record that when viewed in the light most favorable to Complainant shows that there are genuine issues of material fact as to whether the Complainant was subjected to discrimination and retaliation in violation of the law.” Ultimately, the AJ determined that there were no genuine issues of material fact or credibility that merited a hearing. In rejecting Complainant’s response to the Notice of Proposed Summary Judgment, the AJ noted that “[t]he purpose of summary judgment is to avoid taking to a hearing those cases in which Complainant has so far presented nothing to support that to which he has the burden of proof, in this case to rebut an articulation.” The AJ concluded that Complainant’s response did not address the Agency’s articulated reasons for its actions. The AJ further found that Complainant failed to present any evidence to create a factual dispute or to establish how evidence obtained in discovery will prove his case. Complainant contends on appeal that the AJ’s issuance of a decision without a hearing was improper. In this regard, Complainant contends for the first time that the AJ should not have issued a decision without a hearing because the EEO investigation was incomplete and discovery is needed to complete the record. Specifically, Complainant asserts that the Agency failed to produce several documents requested by the EEO investigator.3 He further reiterates his contention that “information which is presently in the exclusive possession and control of the Agency would prove that many of the assertions by [the Deputy Director] are indeed false” and that “the ROI itself indicates that the Agency failed to produce much of the requested evidence, which could confirm Complainant’s allegations and refute those of the Agency.” 3 These documents include: organizational charts; spreadsheets containing demographic information of the Deputy Director’s subordinates; descriptions of the positions for which Complainant applied; request for personnel action requesting recruitment for the position at issue; job analysis used by HR personnel to make qualification determinations and develop referral instrument; referral and selection instrument for the position annotated to reflect candidates’ race, sex, and year of birth; applications or career briefs and all other documents submitted for the position at issue by Complainant and the selectee; documentation identifying selecting or recommending panel members with panel instructions; excerpts from the pertinent agency and local guidelines/regulations concerning merit promotion in effect at the time of the selection at issue; the name and contact information for the Human Resources Specialist who handled the selection at issue; grievance or appeal correspondence; and excepts from pertinent agency and location guidelines/regulations concerning LWOP in effect during March 2015. 2019000040 6 After careful consideration, we agree with the AJ’s issuance of a decision without a hearing. In so finding, we recognize that Complainant desires a hearing to address alleged deficiencies in the report of investigation; however, for the reasons discussed below, we find that the material facts concerning the alleged incidents in this case are not in dispute. Therefore, the AJ properly issued a decision without a hearing. Disparate Treatment To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Where the Agency has articulated legitimate, nondiscriminatory reasons for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases of race, sex, age, and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, the Deputy Director stated that Complainant applied for a GS-1102-12 position that was announced in August 2014, but Complainant’s resume was not forwarded for consideration because Complainant did not submit the required paperwork. The Deputy Director averred that Complainant subsequently visited the HR Specialist who handled his application and essentially bullied the HR Specialist into giving him priority consideration for the next announcement (i.e., the instant vacancy announcement). The Deputy Director stated that the HR Specialist’s supervisor later told her that while the HR Specialist should not have given Complainant priority consideration, HR would stand by the HR Specialist’s decision. Accordingly, the Deputy Director gave Complainant priority consideration for the vacancy announcement at issue; however, in discussing Complainant’s performance with Complainant’s current and previous two supervisors, the Deputy Director learned that “while [Complainant] was a hard worker he could only do a limited type of contracting” and that “all three [of Complainant’s supervisors] told [her] that when they gave [Complainant] something out of his comfort zone, he gets upset and causes problems with the Division.” Furthermore, the Deputy Director indicated that “two separate Contracting Officers [have] had similar experiences with [Complainant] when asking [Complainant] to change some things on a document that he submitted for their signature.” 2019000040 7 The Deputy Director stated that she told Complainant that “he needed to learn how to do a long list of things” because a GS-1102-12 should be at the level to handle anything, including working independently and bringing matters to an 85 percent solution. The Deputy Director maintained that she offered several examples to Complainant, but the only thing Complainant keyed in on during the conversation was source selection. ROI, pgs. 000482-000483. Complainant’s immediate supervisor added that the Deputy Director gave Complainant priority consideration for the position at issue but made a management decision to advertise the position in order to get better qualified applicants. In this regard, Complainant’s supervisor stated that when he met with Complainant and the Deputy Director to inform Complainant of their decision, Complainant became very agitated and wanted to know why management would not promote him. Complainant’s supervisor indicated that he told Complainant that while Complainant performed at an “okay” level as a GS-11, a GS-12 should be someone who can go to any Division and perform any required contract actions within the TCC. Though Complainant’s supervisor offered to steer more complex contracts to Complainant to help Complainant gain experience, Complainant refused the offer. Complainant’s supervisor maintained that the Deputy Director told Complainant that he was more than welcome to compete for the positions even though Complainant did not qualify for the vacancy via priority consideration. ROI, pgs. 000439-000440. Regarding claim 2, the Deputy Director stated that she told Complainant to move to an empty desk in Room 106 because Complainant wanted to work in the Acquisition Planning Cell. However, Complainant did not move to Room 106 as instructed. The Deputy Director indicated that when she learned about Complainant’s unauthorized relocation to Room 109, she and a Master Gunnery Sergeant confronted Complainant to again instruct him to move to Room 106 because the employees in Room 109 worked on personnel type issues and engaged in potential military exercise discussions which were only appropriate for people with a need to know. The Deputy Director expressly denied threatening, intimidating or harassing Complainant and stated that the Master Gunnery Sergeant in question told Complainant that he would have a soldier move the file cabinet for him. Furthermore, the Deputy Director explained that while other civilians had previously worked in Room 109, the functions conducted in Room 109 had changed due to a change in military commanders. ROI, pg. 000486. As for claim 3, the Deputy Director explained that she denied Complainant’s request for leave without pay due to staffing levels at the TCC, which had dipped below 50 percent. The Deputy Director stated that the TCC could not afford to have Complainant occupy a slot for an undermined amount of time without contributing to the workload. ROI, pg. 000484.4 4 We note that there is a discrepancy regarding staff levels at the TCC. Specifically, we note that on March 11, 2015, the Deputy Director denied Complainant’s request for LWOP because staffing levels at the TCC were at 67 percent. However, during the EEO investigation in November 2015, the Deputy Director stated that she denied Complainant’s March 2015 request for LWOP because staffing levels at the TCC were under 50 percent. Compare ROI, pgs. 000484 and 000490. 2019000040 8 Complainant’s immediate supervisor added that LWOP is also always subject to management approval and that since the Priority Placement Program is open-ended and could go on for a long time, having an employee on LWOP for potentially years and years would not benefit the Agency, and the employee would suffer too because he or she would not get paid for it. Finally, with regard to claim 4, the Deputy Director stated that Complainant refused to sign his annual Civilian Evaluation Report because he felt that the bullets in Parts V and IX were lacking. The Deputy Director indicated that she and the TCC Director revised the bullets, but Complainant still refused to sign. She maintained that the bullet comments in Parts V and IX of the DA 7222 were positive and typical of comments customarily used in performance evaluations. The TCC Director added that he and the Deputy Director revised Complainant’s evaluation after Complainant expressed concerns that the bullets in his evaluation were not reflective of his accomplishments and were unprofessional and undeserved. The TCC Director indicated that Complainant still refused to sign the revised comments. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, 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 Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015). For claim 1, Complainant asserts on appeal that the Deputy Director’s reliance on Complainant’s lack of source selection experience is pretextual because the vacancy announcement did not list source selection as a required or desired skill. He contends that the Deputy Director’s reliance on criteria outside of the job posting demonstrates a genuine issue of material fact as to whether the articulated reason is pretextual. Furthermore, Complainant argues that at the time of the vacancy announcement, he did in fact have the required source selection experience, and he provided a certificate evidencing his training. Regarding claim 2, Complainant contends on appeal that the Deputy Director’s explanation for ordering him to move to Room 106 is pretext for discrimination because there were other similarly situated employees who were assigned to Room 109 who had clearances no greater than him. Further, Complainant asserts that another supervisor gave him permission to move to Room 106 and that if “granting the request would have exceeded his security clearance, the supervisor he asked would have denied the request.” Complainant also maintains on appeal that the reassignment was an act of retaliation, which forced him “to choose between remaining in the Small Purchase Division where he was under [the Deputy Director’s] supervision and subjected to discrimination and reprisal or move to the Acquisition Planning Cell where he would remain under the [Deputy Director’s] supervision and still subject to reprisal.” 2019000040 9 As for claim 3, Complainant asserts on appeal that the Deputy Director’s articulated explanation for denying him LWOP for an indeterminate period is pretext for discrimination because “while his duty location was a ‘revolving door,’ at the time of his request and subsequent departure, the staffing levels were at their peak during his five years there.” Furthermore, Complainant contends that his reason for requesting LWOP was exceedingly compelling because he “was seeking to escape the retaliatory and harassing environment created by the very person who denied his request.” Lastly, with regard to claim 4, Complainant contends on appeal that the fact that he received the second highest evaluation is not dispositive; rather, the question is whether the evaluation was as good as deserved, not whether it was simply good or bad. The record also reflects that during the EEO investigation, Complainant contended that the Deputy Director and TCC Director deliberately mischaracterized his performance to make a negative impression on his new employer. ROI, pgs. 000008 and 000399-000400. After careful consideration of the evidence of record, including Complainant’s contentions on appeal, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Given the facts in this case, we find that Complainant failed to show by the preponderant evidence that he was subjected to discrimination because the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to persuasively establish pretext. In reaching this conclusion, we acknowledge Complainant’s contention that he was well qualified for the vacancy announcement in claim 1; however, we find that Complainant cannot sufficiently rebut the Agency’s articulated concerns about his lack of qualifications for position. While we recognize that the vacancy announcement at issue does not expressly list source selection experience as a required or desired skill, we note that the vacancy announcement specifically states that the incumbent will “assume complete responsibility for negotiation and administration of contracts from the development of the contract through all phases of contract activity.” The vacancy announcement also states that the incumbent must be able to “prepare a detailed summary of negotiations including case history, comparison of cost history, comparison of cost data, and conclusions reached and recommend to the Contracting Officer [the] most advantageous offer for award.”5 Because our review of the record in this case clearly shows that Complainant admitted to his “practical lack of source selection experience,” we find that there is no genuine issue of material fact as to his lack of qualifications for the advertised vacancy. ROI, pg. 000115. 5 This language appears to indirectly refer to source selection experience, although that is not expressly referenced in the vacancy announcement. 2019000040 10 Consequently, we agree with the AJ that Complainant cannot rebut the Agency’s articulated explanation for denying him priority consideration (i.e., that Complainant did not have the experience necessary to independently handle all aspects of the contracting process). As for claim 2, while we acknowledge Complainant’s disagreement with the Deputy Director’s articulated reasons for ordering him to move to Room 106, we find that the undisputed evidence clearly shows that Complainant failed to fully comply with the Deputy Director’s directive. In so finding, we recognize that Complainant sought permission from another supervisor to move to Room 109; however, the record clearly shows that the supervisor whom Complainant requested permission clearly instructed Complainant to check with the Deputy Director because the Deputy Director may have a reason for selecting Room 106. ROI, pg. 000471. We find that the preponderant evidence suggests that the confrontation that resulted from Complainant’s failure to move to Room 106 was due to miscommunication rather than discrimination and/or reprisal. In this regard, we find no evidence that the Deputy Director and/or Master Gunnery Sergeant sought to intimidate or threaten Complainant, as the witness account from the Sergeant First Class who witnessed the confrontation clearly establishes that the Deputy Director only asked Complainant why he did not follow her instructions. Id. at 000474. Further, the witness account from the Sergeant First Class also establishes that the Master Gunnery Sergeant only stood beside the Deputy Director and did not say anything to Complainant. Id. Given these factors, we cannot conclude that management intended to intimidate, harass, or threaten Complainant. To the extent Complainant asserts that the presence of other civilians in Room 109 demonstrates pretext, we note that Deputy Director explained that the functions conducted in Room 109 had changed due to a change in military commanders. Id. 000486. We find that Complainant cannot persuasively rebut this explanation. As for the Complainant’s back injury due to his forced relocation to Room 106, we find that Complainant cannot persuasively demonstrate a causal link between his protected characteristics and the Agency’s actions.6 For claim 3, while we acknowledge that Complainant disputes the Deputy Director’s articulated explanation for denying him LWOP for an indeterminate period, we find that he cannot persuasively establish pretext. The record here clearly shows that management attributed the denial of Complainant’s LWOP request to low staffing levels. Though Complainant asserts on appeal that staffing levels were at a peak at the time of his request, we find that Complainant cannot persuasively show that the management’s expressed concerns regarding the potential effects of Complainant’s indeterminate absence on Agency operations were false. Moreover, we note that management conferred with HR and the Agency’s legal counsel prior to denying Complainant’s requests. ROI, pgs. 000415-000416 and 000440. For these reasons, we agree with the AJ’s finding of no discrimination on this claim.7 6 Though Complainant also argues on appeal that the Agency retaliated against him by reassigning him to the Acquisition Planning Cell, we note that this issue is not an accepted claim. Therefore, we will not address Complainant’s reassignment. 7 We note that Complainant did not raise a reasonable accommodation claim or allege discrimination on the basis of disability. 2019000040 11 As for claim 4, we find that the preponderant evidence fails to show that management discriminatorily issued Complainant lower performance ratings due to his protected characteristics. In this regard, while we agree with Complainant that the fact he received the second highest evaluation is not dispositive, we nevertheless find that Complainant’s self-assessment of his own performance is insufficient to demonstrate pretext. Finally, to the extent Complainant contends that the Agency’s actions constituted a hostile work environment, we note that a finding of harassment is precluded by our determination that the actions taken by the Agency were not motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As for Complainant’s remaining contentions, including, but not limited to, allegations about being “blackballed” by the Agency and being improperly denied travel expenses for his son, we note that such claims are not properly before the Commission. Therefore, we will not consider these claims. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision adopting the AJ’s decision that Complainant was not subjected to discrimination as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 2019000040 12 In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled 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 January 31, 2020 Date