Jaleesa P.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120172110 (E.E.O.C. Nov. 29, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jaleesa P.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Rural Development),
Agency.

Appeal No. 0120172110

Hearing No. 461-2016-00085X

Agency No. RD-2015-00898

DECISION

On May 30, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Loan Specialist,
GS-12 at the Monroe Area Office facility in Monroe, Louisiana.

On December 15, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Caucasian), age (53), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when:

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.
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1. On September 30, 2015, her supervisor (“Supervisor”) issued her a lowered rating
on her annual performance appraisal.

2. On September 17, 2015, she was assigned additional work related to compliance
reviews.

3. On July 15, 2015, Complainant was notified that she was not selected for the GS-
1165-12/13, Supervisory Loan Specialist (Gen) (Area Director) position,
advertised under Vacancy Announcement Number LA-2015-179.

4. On May 18, 2015, she learned that she was not selected for the Area Director
position under Vacancy Announcement DEU-LA-2015-0487 and management
declined to make a selection for the vacancy.

5. On March 20, 2011, she not selected for the Area Director position located in
Amite, Louisiana, advertised under Vacancy Announcement Number LA-2011-
RR-0044.

6. Complainant alleged she was subjected to harassment. In support of her claim,
Complainant alleged that the following events occurred:

a. In February 2015, during a meeting, the State Director expressed the intent
to look for “stability and longevity” in hiring and encouraged everyone
who could retire to do so;

b. In early September 2015, the State Director made disparaging remarks
about the show “Duck Dynasty;”

c. In September 17, 2015, the new Area Director told her, that in the South,
“it is White people that discriminate but they are not discriminated
against;”

d. On October 23, 2015, after management was aware of her EEO complaint,
she received official notification of a prior non-selection;

e. On unspecified dates, the Supervisor stated, “I have the power of the pen
and I know how to use it;” and

f. Since an unspecified date, management has demonstrated a pattern of
disparate treatment based on race in hiring.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before the Equal Employment
Opportunity Commission Administrative Judge (AJ).
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On September 27, 2016, Complainant filed a “Motion for Spoliation and Extension of Discovery
Deadline” in which Complainant requested that the AJ take sanction against the Agency for
failure to produce the notes and interview documents of the panelists (Panelists) regarding the
position alleged in claim (3). The Agency responded to Complainant’s Motion. The AJ issued a
decision on Complainant’s motion for sanction on December 13, 2016. The AJ noted that the
Commission’s regulations require preservation of records pertaining to a selection proceeding for
a period of one year from the date of making the record or personnel action. Once the complaint
process is initiated, the Agency is required to retain the personnel records until a final disposition
of the complaint. The AJ found that the instant case, the Agency should have preserved the
documents. While holding there was no evidence of bad faith when the Agency destroyed the
interview notes, the AJ sanctioned the Agency by disallowing the use of the affidavits provided
by the Panelists in support of the Agency’s motion for summary judgment as to the issue of
claim (3). As such, the AJ held that the effect of this sanction was to disapprove of the Agency’s
motion for summary judgment regarding the selection at issue.

On January 20, 2017, the AJ issued another decision address the Agency’s motion for summary
judgment regarding the remaining claims (1), (2), (4), (5), and (6). The AJ issued a partial
summary judgment decision, concluding there were no material facts in dispute as to claims (1),
(2), (4), and (6), and that Complainant withdrew claim (5).

With respect to claims (1), (2), and (4), the AJ determined that Complainant failed to establish a
prima facie case of discrimination based on race, age, and/or reprisal. As to claim (4),
Complainant alleged discrimination when the Agency cancelled the vacancy announcement. The
AJ found that Complainant provided no evidence to show that the cancellation was because of
her age and/or race. Further, Complainant engaged in protected EEO activity after the vacancy
announcement was cancelled. Therefore, the AJ concluded that Complainant failed to establish
her prima facie case of discrimination. With respect to claims (1) and (2), the AJ noted that the
Agency pointed out in its Motion that Complainant did not believe that her age and/or race were
the motivating factors. In addition, the AJ found that the Agency provided legitimate,
nondiscriminatory reason for the evaluation which was based on her performance which was
consistent with her prior performance ratings over the years and the need for increased
compliance review production. Finally, the AJ held that Complainant failed to provide any
evidence to establish that the Agency’s reasons were to mask unlawful discrimination or reprisal.

Finally, as to the claim of harassment alleged in claim (6), the AJ indicated that Complainant
failed to provide any evidence of disparate treatment in the Agency’s hiring practice based on
race as alleged in event (6)(f). In (6)(d), Complainant alleged that she was informed of the non-
selection alleged in claim (3). The AJ noted that this was not connected to the other alleged
events as part of her claim of harassment. The AJ found that (6)(e) regarding the “pen” was not
evidence of a discriminatory or retaliatory remark. As to the alleged comment by the Supervisor
raised in (6)(c), the AJ held that the words alone did not constitute harassment. Finally, as to
(6)(a) and (c), the AJ determined that these events were not objectively offensive nor were they
based on the bases of race, age, and/or in reprisal for protected EEO activity. Therefore, the AJ
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concluded that Complainant has not established that she was subjected to harassment and/or
disparate treatment with respect to claims (1), (2), (4), (5) and (6).

The AJ held a hearing regarding claim (3) on January 31 and February 1, 2017, and issued a
decision on March 21, 2017.2 Following the hearing, the AJ issued a decision finding that
Complainant failed to establish that she was subjected to discrimination as alleged. During the
hearing, the AJ heard from ten witnesses regarding the selection process. The parties submitted
its joint stipulation of facts. As to Complainant, the parties agreed that the Director was the
responsible management official regarding claim (3). The selectee (“Selectee”) for the position
in question was an African-American woman who was over the age of 40. The AJ noted that the
age difference between Complainant and the Selectee was less than five years and not
significant. As such, the AJ determined that Complainant failed to establish a prima facie case of
age.

As noted above, the AJ indicated that Complainant sought to sanction the Agency for destroying
the notes of the interview Panelists during their interview of the candidates for the selection. The
AJ noted that several months prior to the section at issue, the Agency had undergone a
consolidation of the Agency’s Human Resources staff serving 13 states. The AJ held that it was
not certain what happened to the notes. However, he found that the notes were not preserved.
The AJ determined that a tailored sanction was appropriate. The AJ held that the Agency could
not use the affidavits provided by the Panelists in support of its motion for summary judgement.
In addition, the AJ cautioned the Agency that it should preserve the documents in connection
with anticipated litigation for it could lead to progressive and harsher sanctions. Further, the AJ
was satisfied with the facts of the case and did not feel that the notes would have shed any
further light on the selection at issue.

The AJ then turned to the position at issue. The record indicated that Complainant was one of
seven or so individuals who were included on the list of eligible candidates (“List”). The List
was provided to the Panelists. The AJ indicated that the four Panelists were widely diverse in
terms of race, age, sex, and job description. The AJ then noted that the Panelists were provided
questions generated by the Agency’s Human Resources office in order to make their selection.
The interviews were observed by a Human Resources Representative as well as an EEO
Representative to ensure that the questions were not inappropriate. The Panelists interviewed all
qualified candidates with the same questions. The Panelists felt that leadership was an important
component for the position in question. Three of the Panelists believed that the subject matter
could be learned on the job and were more interested in selecting a leader. As such, they chose
the Selectee as the top candidate for the position in question. One Panelist believed that
Complainant demonstrated the requisite leadership skills, but also felt that the Selectee had the
greatest supervisory experience. That Panelist found Complainant to be the top candidate. The
record indicated that each of the Panelists made individual recommendations based on the

2 We note that the hearing was consolidated with two other Complainants who also alleged
discrimination regarding the non-selection. Those matters were also appealed and are the subject
of EEOC Appeal Nos. 0120172111 and 0120172112.
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interviews. However, the Panelists found consensus following the interviews and deliberation
process and two individuals were recommended to the Director for selection. Further, the
Selectee was listed as the top recommended candidate for selection by three of the Panelists
while Complainant was favored for the position in question by one of the Panelists.

The Director averred in his affidavit that, due to turnover in the office, he wanted someone who
would be in the position for an extended period of time and provide stability. However, the AJ
noted that any perception of age bias was negated for the Director relied upon the
recommendations of the Panelists. The Director recalled at the hearing that the Panelists
recommended only the Selectee. The Director testified at the hearing that he relied upon the
recommendations provided by the Panelists and chose the Selectee. The AJ noted that the
Director indicated to the EEO Counselor that he was provided with two recommendations for the
position in question, namely Complainant and the Selectee and that he chose the Selectee. The
AJ indicated that the Panelists provided recommendations for the Selectee and Complainant.
Complainant had argued that the Director lacked credibility based on the inconsistency in his
testimony that only the Selectee was recommended for the position in question. Complainant
asserted that the AJ draw an inference that the Director was motivated by discriminatory animus.
The AJ declined to do so. The AJ found that the Director’s testimony was credible noting the
even if there was a discrepancy, it was not material to the case. The AJ found that the record and
the testimony clearly showed that there was a consensus that Complainant and the Selectee were
the two top candidates.

Complainant argued that the Selectee was not qualified for the position, however, the AJ noted
that it was the Human Resources Assistant who found the Selectee qualified. Further, the AJ
indicated that Complainant provided no proof beyond her bald assertion that the Selectee was not
qualified. The AJ also held that there was no evidence or argument for discriminatory animus on
the part of the Human Resources Assistant. He also stated that no one had met the Selectee or
had known the Selectee to hold a racial animus. As such, the AJ found that there was no
evidence in the record that the Selectee was not qualified for the position in question.

Therefore, the AJ determined that the preponderance of the evidence supported the Agency
followed its selection procedures and that following those procedures. The Human Resources
Office provided the Panelists with the List and they asked questions generated by the Agency’s
Human Resources office. The Panelists agreed that leadership for the position was an important
component for the job. Based on the Panelists’ review, Complainant received one
recommendation for selection while the Selectee was found to have the most experience leading
and had a plan to supervise. Even the Panelist who recommended Complainant found that the
Selectee had the greatest supervisory experience. The AJ also pointed out that the interview of
the Selectee was conducted by phone and the Panelists were not aware of her age, race, and/or
prior EEO activity. The AJ held that Complainant failed to show that the Selectee was chosen
based on her age, race, and/or prior protected EEO activity.

The AJ noted that Complainant believed that the Director, not the Panelists, was the
discriminatory official. The AJ found that none of the Panelists provided him with a reason to
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doubt their sincerity or their credibility. Based on the totality of the evidence, the AJ concluded
that Complainant failed to establish that the Agency’s reason for choosing the Selectee was
pretext for discrimination.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant did not show that the Agency subjected him to
discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).

This appeal followed. Complainant alleged that the Agency failed to select her for the position
in question despite possessing the experience, job performance and knowledge of the Agency,
regulations and the program required. She asserted that the only reasons should could think of
was her race. Complainant also alleged that the Agency should have been sanctioned for failing
to maintain the notes from the selection process. Complainant asked that the Commission find in
her favor.

ANALYSIS AND FINDINGS

Claims (1), (2), (4), (5), and (6) – AJ’s Decision without a Hearing

In rendering this appellate decision regarding the claims addressed without a hearing, 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 the 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”).

Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact regarding claims (1), (2), (4) and (6).3

3 We note that the AJ issued a decision without a hearing on four of the claims alleged. The AJ
determined Complainant had withdrawn claim (5). She did not challenge this finding on appeal.
As such, we shall not address claim (5) as it was abandoned by Complainant.

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Claims (1), (2), and (4)

In claims (1), (2), and (4), Complainant alleged she was subjected to disparate treatment
regarding her performance appraisal from September 2015, her work assignments in September
2015, and the cancellation of a vacancy announcement in May 2015. The AJ determined that
Complainant failed to provide any evidence to establish a prima facie case of discrimination
based on her race, age and/or prior protected EEO activity.

Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate
treatment reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Complainant must establish a prima facie case by demonstrating that she 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).

Complainant may establish a prima facie case of race, age and/or prior protected EEO activity by
showing that: (1) she is a member of the protected classes and/or engaged in a protected activity;
(2) the Agency was aware of her protected bases and/or the protected activity; (3) subsequently,
she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her
membership in those protected bases and/or prior protected activity and the adverse treatment.

Complainant has not challenged the AJ’s decision nor has she provided any evidence to establish
her claims of disparate treatment with respect to claims (1), (2), or (4). Upon review of the
record, we find that Complainant has not shown that there are any material facts in dispute
regarding these events. Further, Complainant failed to establish a prima facie case of
discrimination regarding any of these alleged events. Therefore, we find that the AJ’s decision
finding no discrimination without a hearing with respect to claims (1), (2) and (4) was
appropriate.

Claim (6)

Further, Complainant alleged that she was subjected to harassment in claim (6). It is well-settled
that harassment based on an individual’s age, race, and/or 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) she belongs to the statutorily
protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome
conduct related to her membership in those classes and her prior EEO activity; (3) the
harassment complained of was based on race, age, and/or prior EEO activity; (4) the harassment
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had the purpose or effect of unreasonably interfering with his/her 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).

Upon review of the record, we find that Complainant has not shown that there are material facts
in dispute as to her claim of harassment. Accordingly, we find that the AJ’s decision without a
hearing was appropriate. Furthermore, Complainant has provided no evidence to establish that
the alleged events occurred because of her race, age, and/or prior EEO activity. Therefore, we
conclude that Complainant has not shown that she was subjected to a hostile work environment
as alleged.

Claim (3) – AJ’s Decision Following the Hearing

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an EEOC AJ will be
upheld if supported by substantial evidence in the record. Substantial evidence is defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Therefore, the Commission finds that the only claim remaining before the Commission is
Complainant’s claim that she was not selected for the position in question raised in claim (3)
based on her race, age, and/or prior EEO activity. A claim of disparate treatment based on
indirect evidence is examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first
establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v.
Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

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This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Upon review of the record, we find that the AJ correctly determined following a hearing that the
Agency provided legitimate, nondiscriminatory reasons for its actions. The Human Resources
Assistant reviewed the applications and rated Complainant, the Selectee and others and created
the List. The List was provided to the Panelists who conducted interviews. The AJ correctly
indicated that the Selectee was favored by a majority of the Panelists for the position in question
based on her leadership experience. The Panelists provided their recommendations to the
Director for consideration. The Director chose the Selectee based on the recommendations by
the Panelists. We note that the Director indicated to the EEO Counselor that the office needed
structure and that he was looking for leadership to address problems in the workplace. He noted
at the hearing that based on the recommendations of the Panelists, the Selectee was the best
person for the job. He stated that she was the “best fit” for the job. We find that the record
supports the AJ’s finding following the hearing. We turn to Complainant to show that the
Agency’s reasons were pretext for discrimination based on his race, age and/or retaliation.

Agencies have broad discretion to choose among equally qualified candidates as long as the
selection is not based on unlawful considerations. Complainant v. Dept. of Homeland Security,
EEOC Appeal No. 0120141478 (Jul. 31, 2015). They may select candidates with fewer years of
experience if they believe that such candidates are best qualified to meet the needs of the
organization. Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015).
They may even preselect a candidate as long as the preselection is not premised upon a
prohibited basis. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858
(Mar. 9, 2015).

The Commission cannot second-guess an Agency's personnel decisions unless there is evidence
of a discriminatory motivation on the part of the officials responsible for making those decisions.
TX Dep’t of Commn’y Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to
prevail on her disparate treatment claim, Complainant would have to prove, by a preponderance
of the evidence, that the Panelists and the Director were motivated by unlawful considerations of
her race, age, or reprisal when the Director did not select her. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000). Based on the record, however, we find that the
Agency's determination that management's proffered reasons were legitimate and non-
discriminatory. Complainant did not provide persuasive arguments, below or on appeal, that the
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Agency's actions were pretext for discrimination or unlawful retaliation. Accordingly, we find
that the AJ decision finding that Complainant has failed to do so is supported by the record.

On appeal, Complainant asserted that the AJ erred in failing to issue a default judgment as a
sanction for the Agency’s failure to preserve the notes from the selection process. As the
Agency acknowledged, this practice is a clear violation of EEOC Regulation 29 C.F.R. §
1602.14, which requires, in pertinent part that any records having to do with hiring, promotion,
and other personnel actions be preserved for one year from the date of the making of the record
or the personnel action involved, whichever occurs later. A failure to preserve records relevant to
a personnel action raised in an EEO complaint can in appropriate circumstances support an
adverse inference against the Agency. See Ramirez v. U.S. Postal Serv., EEOC Request No.
05920839 (March 4, 1993) citing Colquitt v. Dep’t of Veterans Admin., EEOC Request No.
05870528 (June 14, 1988).

Here, we conclude the AJ did not abuse his discretion to invoke a harsher sanction. The AJ found
that the Human Resources office was undergoing reorganization at the time and the notes were
destroyed by staff who were not included on the request to preserve the case file. That, together
with the fact that the destruction of the interview notes was a routine practice at the Agency,
tends to negate any inference that the Agency destroyed the notes in anticipation of
Complainant’s filing an EEO complaint.4 Moreover, by requiring a hearing on the claim, the
testimony provided by ten witnesses, including the Panelists and Complainant, filled in the
evidentiary gap created by the destruction of the notes. Aside from her own assertions,
Complainant has not presented affidavits, declarations, or statements from witnesses other than
herself or any documentary evidence that contradicts the Agency’s explanation as to why the
notes were destroyed, or undermines the Agency’s veracity to the reasons for the selection
decision at issue.

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 finding no discrimination.

4 The Agency should review and if necessary, revise its policies concerning document retention
so as to bring those policies into compliance with 29 C.F.R. § 1602.14. See Marguerite L. V.
Dep’t of the Interior, EEOC Appeal No. 0120160189 (May 17, 2018).
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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. 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.
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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

November 29, 2018
Date