Appeal No. 0120110241
10-15-2015
Carl Y.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carl Y.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120110241
Hearing No. 490-2008-00219X
Agency No. DFS-07-0853-F
DECISION
Complainant timely filed an appeal from the Agency's 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.; Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.; and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence of record supports the Administrative Judge's decision that Complainant did not establish that the Agency discriminated against him on the bases of race, color, sex, age, disability, and reprisal for prior EEO activity when it denied his request for reasonable accommodation and allegedly subjected him to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative, GS-0962-08, at the Agency's Memphis Service Center in Memphis, Tennessee.
In a complaint filed on August 6, 2007, and subsequently amended, Complainant alleged that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African American), color (light complexion), sex (male), age (48), disability (eye strain and blurry vision), and reprisal for prior EEO activity when:
1. on August 16, 2006, he was placed on an employee improvement plan;
2. on June 22, 2007, he received a lowered annual performance appraisal for the period ending May 31, 2007;
3. on July 31, 2007, management denied his reasonable-accommodation request and, on October 3, 2007, denied his subsequent request for reconsideration; and
4. on August 3, 2007, he was subjected to a humiliating and degrading training plan.
On May 14, 2008, Complainant sought to amend the complaint to allege that the Agency constructively discharged him. By letter dated June 23, 2008, the Agency informed Complainant that it was processing the constructive-discharge claim under a new case number because it was a mixed-case claim. During the hearing on the instant complaint, the AJ asked Complainant about the status of his constructive-discharge claim and whether it went before the Merit Systems Protection Board (MSPB). He replied that he "was waiting to hear something back" and had not "checked the file to see where it was." The Agency's counsel stated that Complainant withdrew the claim from the Agency's Complaint Center.
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. Complainant timely requested a hearing.
During a June 17, 2010, pre-hearing conference, the AJ disapproved one of Complainant's proposed witnesses as irrelevant. The AJ noted that the proposed witness, an ophthalmologist (O3) who treated Complainant approximately six weeks after he resigned from the Agency, provided no guidance to the Agency regarding Complainant's reasonable-accommodation request. The AJ approved Complainant's request to call an optometrist (O2), who treated Complainant on October 4, 2007, as a witness. The AJ held a hearing on July 29, 2010. At the beginning of the hearing, Complainant's representative confirmed that O2 would not be testifying. The AJ issued a decision in favor of the Agency on August 17, 2010.
The AJ found the following facts: Complainant was a long-term, seasonal employee who worked for the Agency nine to twelve months per year. His first-level supervisor, the Supervisory Contact Representative (S1), started supervising Complainant in 2003. There usually were ten employees in S1's unit; all were African American, all were of darker complexion than Complainant, and two, including Complainant, were male. For the appraisal period from July 1, 2004, to June 30, 2005, Complainant received a "fully successful" rating with no failing marks in any performance element. His average Critical Job Element (CJE) score was 3.2.
In late 2005, Complainant provided a statement to an EEO Counselor regarding a complaint that a member of S1's team filed against an employee of a different team. All team members, including S1, spoke with the EEO Counselor about the matter. S1 testified that she did not see the statement that Complainant gave to the EEO Counselor, and Complainant did not know whether S1 knew the substance of his statement.
During the January 2006 mid-year progress review, S1 advised Complainant that he was failing in some performance aspects. Subsequently, in a June 23, 2006, performance appraisal for the period from July 1, 2005, to May 31, 2006, S1 gave Complainant a "fails" rating in one performance aspect (Compliance Communication) and an overall rating of "minimally successful." His average CJE score was 2.80.
By memorandum dated August 3, 2006, S1 gave Complainant an Employee Improvement Plan (EIP). In the memorandum, S1 stated that Complainant's 2005-2006 performance appraisal was "not indicative of [his] performance in Customer Accuracy Aspect 2A, Technical Knowledge/Research Aspect 2C, and Accuracy of Input Aspect 4A." S1 also stated that she and the Lead Customer Service Representative would work with Complainant to improve his performance.
The AJ found that S1 credibly testified that she issued the EIP after realizing that she had given Complainant "meets" ratings in aspects where Complainant's performance had dropped. S1 had made similar errors on the performance appraisals of two other employees and issued EIPs to them.2 The AJ found that Complainant presented no evidence to support his assertion that S1 issued the other EIPs to cover up the true, allegedly retaliatory reason for issuing Complainant's EIP.
Before the issuance of the August 2006 EIP and during the discussion of the EIP, Complainant told S1 that he was having problems with his eyes. S1 told Complainant to provide medical documentation, but he did not do so until the following year.
Complainant filed a November 18, 2006, EEO complaint alleging that S1 discriminatorily denied him overtime. He withdrew his request for a hearing on that complaint in December 2007.
In a June 30, 2007, performance appraisal for the period from June 1, 2006, to May 31, 2007, S1 gave Complainant a "fails" rating in three performance aspects (Customer Accuracy, Compliance Communication, and Accuracy of Input) and an overall rating of "minimally successful." His average CJE score was 2.40. According to S1, Complainant's average CJE scores were the lowest of anyone on the team from 2004 to 2007.
For the 2006-2007 appraisal, S1 based the ratings in part on her observations of Complainant and in part on data from a computerized Embedded Quality Review System (EQRS) that randomly dropped customer service representatives' calls and paper into a quality-review box for review by the supervisor. Based on S1's review of 40 of Complainant's EQRS entries, Complainant received a 66.7% in Customer Accuracy, 50% in Compliance Communication, and 78.8% in Accuracy of Input.
Complainant gave S1 a June 25, 2007, note in which his optometrist (O1) stated that he had seen Complainant "for an eye exam relating to eye strain." O1 recommended the following steps "for relief of eye strain when viewing [a] computer monitor":
1. Approve request for 2 flat screen monitors and 1 document magnification system to relieve eye strain
2. Prescribe Bifocal lenses to be worn full time
3. Return to clinic 1 year.
S1 instructed Complainant to complete an Agency Reasonable Accommodation Request form, and he submitted the form on July 5, 2007. On the form, Complainant stated that his disability was "low vision." He described his condition as "Difficulty experience in reading computer screens and paperwork. Prescribed bifocal lenses being worn[ ]. Eye strain while using computers and reading documents." He requested two "large flat screen monitors and [one] document magnification system and any other systems that would enhance low vision readability." In the "Medical Documentation" section of the form, O1 diagnosed Complainant's condition as eye strain and blurry vision and stated that the request would assist in relieving eye strain and blurry vision.
On July 11, 2007, Complainant requested two days of on-the-job training with the Lead Customer Service Representative (E1) "to enhance JEEDA, EERG . . . and other research tools." S1 approved the request. On July 26, 2007, Complainant notified S1 that he had completed four hours of training, found it informative and very useful, and "would welcome paper observation and training as well."
By memorandum dated July 31, 2007, Complainant's second-level supervisor, the Department Manager (S2), denied Complainant's reasonable accommodation request on the basis that Complainant was not substantially limited in a major life activity. S2 relied on a July 24, 2007, assessment from a Federal Occupational Health (FOH) physician, who recommended that Complainant ask his optometrist for computer glasses that would "allow focus on the intermediate field." The FOH physician, who was not an optometrist, also recommended that Complainant request computer software to enlarge text. He stated that he discussed Complainant's condition with O1 and that O1 recommended flat screen monitors and a magnification system based on Complainant's "request that such equipment was available."
Complainant and S2 attended mediation on August 3, 2007. As the result of an agreement reached during mediation, S2 established a three-day training plan to help Complainant improve his "job knowledge technical skill." The plan called for a four-hour "assessment" with one employee (E1), a four-hour, side-by-side "EERG navigation session" with a second employee (E2), and a four-hour, side-by-side "JEEDA navigation session" with E1.
Complainant testified that he told S2 that he would come up with ideas for training, that he suggested some things to S1 and worked on them for one day, and that S1 then told him to stop because S2 had devised an improvement plan for him. According to Complainant, the plan involved new-hire training. He stated that he agreed to the training because he did not feel that he had a choice and that the EERG training consisted of E2's "badgering."
S2 testified that she asked Complainant about the training that he wanted but he could not give her any specifics. She stated that she created a plan to assess Complainant's skills and then provide training on research tools. S2 also stated that the plan was not mandatory and that Complainant agreed to it.
On August 10, 2007, Complainant requested reconsideration of the denial of his request for reasonable accommodation. By letter dated October 3, 2007, the Operations Manager denied the request for reconsideration because Complainant had not submitted any additional medical documentation. On October 9, 2007, Complainant submitted a second request for reasonable accommodation in which a second optometrist (O2) diagnosed Complainant as having "various signs related to computer vision syndrome." He stated that the condition was chronic "as long as his job consists of large amounts of computer use" and that its impact involved visual and physical discomfort as well as "[i]naccuracies resulting in errors in performance of his job."
Complainant resigned from the Agency on October 12, 2007. In his letter of resignation, Complainant cited "continued acts of reprisals, hostile stressful working environment," and management's failure to support his requests for reasonable accommodation. He received a denial of his second reasonable-accommodation request shortly after he resigned.
At the hearing on Complainant's complaint, the FOH physician testified that, based on his review of Complainant's medical documentation and his discussion with O1, he believed that Complainant had presbyopia. According to the FOH physician, presbyopia is a common condition that is part of the normal aging process. He concluded that Complainant does not have a substantial limitation but, instead, "probably has a limitation like all of us have in the intermediate range of focusing distance." He stated that O1 had prescribed bifocals for myopia and presbyopia but had not prescribed spectacles for intermediate distance. The FOH physician also stated that large screen monitors and magnification systems are used for individuals whose vision is less than 20/40 and spectacles are failing. He recommended that Complainant use computer glasses for intermediate distance, blink and rest his eyes intermittently, and increase the font size on his computer screen.
Complainant testified that he has trifocals but was not wearing them during the hearing. He did not know what his corrected vision is. He stated that he drives but tries not to drive in the rain because it is very dangerous. He also stated that he has no trouble reading handwriting, that his eyes burn a lot and that he puts solution in them if he reads for a long time, and that his "eyes are straining now." Further, Complainant testified that he kept magnifying glasses at his desk to read different fonts.
The AJ found that Complainant does not have a "disability" as defined by the Rehabilitation Act because he was not substantially limited in seeing. She AJ stated that Complainant offered no evidence regarding his corrected vision and that he denied experiencing any limitations in driving a car or reading handwriting. The AJ also stated that, although Complainant testified that he had difficulty reading certain font sizes and kept magnifying glasses at his desk, he exhibited no difficulty reading documents during the hearing. In light of the FOH physician's credible testimony that Complainant's condition was a common condition associated with the normal aging process, the AJ found that Complainant does not have a substantially limiting impairment.
Because she determined that Complainant does not have a disability, the AJ found that he was not entitled to a reasonable accommodation. Accordingly, she concluded that the Agency did not discriminate against Complainant when it denied his requests for reasonable accommodation.
The AJ also concluded that Complainant did not prove that the Agency subjected him to a hostile work environment on any of the alleged bases. She found no evidence that the Agency based any of the actions on Complainant's race, color, sex, or age. Further, noting that the case focused on Complainant's allegations of reprisal and disability discrimination, the AJ concluded that the actions at issue involved routine workplace incidents rather than harassment.
The AJ noted that other employees also were placed on employee improvement plans for the 2005-2006 appraisal year. With respect to Complainant's performance-appraisal rating, the AJ pointed out that S1 based the "minimally successful" rating in part on her observations of Complainant and in part on after-the-fact reviews of telephone calls and documents that the computerized EQRS randomly selected for review. The AJ also pointed out that S1 conducted EQRS reviews of all of the employees on the team. She found that Complainant produced no evidence that S1's evaluation of his performance differed in tone or manner from the way that S1 evaluated his co-workers' performances. In addition, noting that Complainant requested training on the programs for which he received training, the AJ found that no reasonable person in Complainant's position would find the training to be humiliating. Finally, the AJ found that Complainant offered no evidence that the denials of reasonable accommodation were based on an unlawful reason.
On August 30, 2010, the Agency issued a final order fully implementing the AJ's determination that Complainant did not prove that the Agency subjected him to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that his attorney and the Agency tricked him into withdrawing his constructive-discharge claim. He argues that the AJ erroneously refused to consider the constructive-discharge claim, and he seeks to amend his complaint to include that claim.
Complainant also argues that the AJ erroneously refused to allow O3 to testify on his behalf. He submits a November 27, 2007, letter from O3 to a physician whom Complainant identifies as an ophthalmologist. In the letter, O3 stated that Complainant explained his work at the Agency and that he did not believe that Complainant's progressive bifocal was usable for what Complainant was trying to do. O3 further stated, "[Complainant] did get a recent trifocal that I think is usable for what he is trying to do. He admits that he can function with that." In addition, O3 stated that Complainant's vision "is not correctable to 20/20 but close and this lack of 20/20 vision, typical for high myopia and high astigmatism, would put him at a handicap status for seeing clearly." Complainant also submits an October 17, 2007, progress note in which an optometrist (O5) states that Complainant "complains of blur while working on the computer."
In addition, Complainant asserts that management discriminatorily failed to complete the "Deciding Official Documentation" section of his Reasonable Accommodation Request form. He reiterates his claims that S1 treated him discriminatorily and subjected him to a hostile work environment. Further, Complainant alleges that "some managers" manipulated the Agency's EQRS reviews.
The Agency raised no arguments on appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Upon review, for the reasons explained below, we find that the AJ's decision is supported by substantial evidence of record.
Constructive-Discharge Claim
Complainant's constructive-discharge claim related to an action that was appealable to the MSPB, and the Agency therefore treated it as a mixed-case complaint. See 29 C.F.R. � 1614.302. Accordingly, the Agency processed the claim separately from the instant complaint. Although Complainant now asserts that he was tricked into withdrawing the claim, the claim was not part of the matter currently before us. Complainant may not amend the instant complaint on appeal to include the constructive-discharge claim.
Denial of Witnesses
An AJ has authority to limit the number of witnesses so as to exclude irrelevant and repetitious evidence. EEO MD-110, Chap. 7 at � III.D. In this case, the AJ denied Complainant's request to call an ophthalmologist (O3) who examined Complainant approximately six weeks after he resigned from the Agency. The examination occurred after the alleged discrimination at issue here and, as the AJ noted, O3 provided no information to the Agency. Therefore, we find that the AJ properly disapproved the proposed witness.
Reasonable Accommodation
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation").
This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because the matters at issue here occurred in 2006 and 2007, the Commission will apply the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008 to determine whether Complainant is an individual with a disability.
Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter, must show that he is an "individual with a disability." That is, Complainant must demonstrate that he (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities include seeing. Id. � 1630.2(i). Under the law at the time of the events at issue here, an impairment was substantially limiting when it prevented an individual from performing a major life activity or significantly restricted the condition, manner, or duration under which the individual could perform a major life activity. Id. � 1630.2(j). The individual's ability to perform the major life activity must have been restricted as compared to the condition, manner or duration under which the average person in the general population could perform that same major life activity. Id. The determination of whether an impairment substantially limited a major life activity included consideration of the effect of mitigating measures, such as eyeglasses. Sutton v. United Air Lines, 527 U.S. 471 (1999).
In this case, we find that substantial evidence supports the AJ's conclusion that Complainant does not have a substantially limiting impairment. At the time of the events at issue here, Complainant was diagnosed with having "eye strain and blurry vision" and "various signs related to computer vision syndrome." O1 prescribed bifocal lenses for Complainant, and the FOH physician recommended computer glasses. The FOH physician testified that he believed that Complainant had presbyopia which, according to the FOH physician, is a common condition that is part of the normal aging process. Complainant, who did not know what his corrected vision is, testified that he has no trouble reading handwriting and that he drives, but not in the rain. He did not show that, with his prescribed corrective lenses, he was substantially limited in seeing as compared to the average person in the general population. Accordingly, we find that Complainant has not established that he is an individual with a disability.
Because Complainant has not established that he is an individual with a disability, he has not shown that he was entitled to reasonable accommodation. Accordingly, we find that substantial evidence supports the AJ's conclusion that the Agency did not discriminate against Complainant when it denied his requests for reasonable accommodation.
Disparate Treatment and Hostile Work Environment
A claim of a disparate treatment generally is examined under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of the law must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris , 510 U.S.at 23.
To establish a claim of discriminatory harassment, Complainant must show that: (1) he is a member of the statutorily protected class; (2) he 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 his statutorily protected class; (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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, 510 U.S. at 21. 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 Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris).
Upon review, we find that substantial evidence supports the AJ's determination that Complainant did not establish that the Agency subjected him to a hostile work environment based on race, color, sex, age, disability, or reprisal for protected activity. The Agency articulated legitimate, nondiscriminatory reasons for its actions. S1 issued the EIP because of deficiencies in Complainant's performance and based the June 30, 2007, performance-appraisal rating on her observations of Complainant and her review of EQRS data. After Complainant expressed an interest in training, S2 devised a plan to assess Complainant's skills and to provide training.
Complainant has not shown that the supervisors' reasons for their actions are unworthy of credence or that his membership in a protected group more likely motivated their actions. As the AJ noted, S1 placed other employees on EIPs, and there is no evidence that S1 evaluated Complainant's performance differently from the way that she evaluated his co-workers' performances. Complainant's assertion that "some managers" manipulated the Agency's EQRS reviews does not establish that S1's evaluation of his performance was discriminatory. Further, there is no evidence that S2 devised Complainant's training plan for discriminatory reasons. On the contrary, the evidence establishes that Complainant requested training. Finally, to the extent that Complainant is alleging that the Agency engaged in disparate treatment when it denied his request for reasonable accommodation, Complainant has not shown that to be the case. There is no evidence that the Agency provided reasonable accommodations such as flat-screen monitors to a similarly situated employee who was not an individual with a disability.
Complainant has not shown that the Agency took the actions at issue here because of his race, color, sex, age, disability, or prior protected activity. Accordingly, he has not established that the Agency discriminatorily subjected him to a hostile work environment.
We find that substantial evidence of record supports the AJ's conclusions. Therefore, we find no basis to disturb the AJ's determination that Complainant did not establish that the Agency discriminated against him as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, which implemented the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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, Director
Office of Federal Operations
Oct. 15, 2015
__________________
Date
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 The record discloses that S1 issued a March 30, 2006, EIP to an employee regarding a March 2005 to February 2006 performance appraisal, and issued a February 28, 2007, EIP to an employee regarding a February 2006 to January 2007 performance appraisal.
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