U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 1 Filiberto H.,2 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020004816 Agency No. HS-CIS-01273-2019 DECISION On August 28, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 28, 2020, final decision 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented are whether the Agency subjected Complainant to harassment, disparate treatment, and denial of reasonable accommodation as alleged. 1 We note that Complainant identifies as a transgender female. However, during the EEO investigation, Complainant asked the EEO investigator to refer to him using his male first name or as “Mr. [named omitted].” See Report of Investigation (ROI) at 5. We also note that Complainant’s attorney, on appeal, refers to Complainant using male pronouns. In accordance with Complainant’s preference, we too shall refer to him using male pronouns. 2 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. 2020004816 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Immigration Services Officer (ISO), GS-1801-07/1, at the Agency’s Vermont Service Center in Essex, Vermont. He was appointed to the position on June 10, 2018, subject to a one-year probationary period. In late July 2018, Complainant allegedly learned that a female colleague (C1) and other employees were defrauding the Agency for personal financial gain. Complainant stated that he reported the fraud to management. See Report of Investigation (ROI) at 000115. Complainant claimed that due to his whistleblowing, C1 made an anonymous complaint against him, falsely accusing him of hating “Hispanics, Blacks, women, Jews, gays, and transgender persons, among others.” Id. at 000008. In an attempt to defend himself from these accusations, Complainant allegedly outed himself to his Section Chief that he was a gay, half Mexican and Puerto Rican, transgender woman who had been adopted. See Complainant’s Appellate Brief at 4; see also ROI at 000115. Complainant also allegedly shared with his Section Chief that he had mental disabilities and had been involuntarily separated from active duty military service for committing a “homosexual act.” Id. Complainant claimed that he subsequently disclosed his sexual orientation to his Supervisory ISO a few days later on or around August 8, 2018. Id. at 5. Complainant maintained that during this time period, he also verbally disclosed to his Supervisory ISO that he had attention deficit disorder (ADD) and attention deficit hyperactivity disorder (ADHD) and needed reasonable accommodation in the form of testing assistance. Id. Complainant believed that following these disclosures about his protected characteristics, the Supervisory ISO began making racist and homophobic comments about him; scrutinized his work more closely than other employees, gave him a poor review, and a counseling letter; and denied his requests for reasonable accommodation. On April 5, 2019, approximately 10 months after his appointment, the Deputy Director of the Vermont Service Center removed him from federal service during his probationary period. On June 6, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic),3 sex (transgender female),4 3 We note that Complainant raised “Hispanic” as his race. However, we note that the Commission considers the term, “Hispanic,” to be reflective of national origin, rather than race. We also note that the Agency disputes whether Complainant is Hispanic, as the Agency claims that there is evidence in record that suggests that Complainant is of Italian/Irish descent. However, as reflected in the record, Complainant is half-Mexican and half-Puerto Rican and was adopted by an Irish/Italian family. ROI at 000043. 4 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an 2020004816 3 color (white), disability (mental), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973. Following amendments to his complaint, the Agency accepted the following allegations of discrimination when. 1. Between August 2018 and April 5, 2019, he was subjected to a hostile work environment, his Supervisory ISO made racist comments towards him, gave him a poor review, and issued him a write up for working past 06:00 p.m.; 2. Commencing in August 2018, he repeatedly requested reasonable accommodations during his employment, but the requests were all denied; and 3. On April 5, 2019, the Deputy Director of the Vermont Service Center (Deputy Director) terminated him from his position of employment during his probationary period.5 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On March 2, 2020, the assigned AJ ordered the parties to submit a prehearing statement and a proposed discovery plan by May 1, 2020, in preparation for the prehearing conference, which was scheduled on May 8, 2020. Complainant, however, failed to file the required prehearing submissions by the deadline. The day before the prehearing conference was scheduled to occur, Complainant contacted the AJ to request a postponement because his representative had fallen ill with Covid-19 and had suffered a death in her family. The AJ ultimately denied Complainant’s request because Complainant failed to follow her instructions for requesting a postponement. The telephonic pre-hearing conference occurred as scheduled on May 8, 2018. Following the telephonic pre-hearing conference, the AJ issued an order dated May 8, 2020, memorializing her verbal denial of Complainant’s request for full discovery on the grounds that Complainant had waived his right due to his failure to file the required prehearing submissions. The AJ, however, afforded Complainant the opportunity to engage in limited discovery to obtain all emails between his first and second level supervisor regarding his performance or disabilities. The AJ also allowed Complainant to request the email exchanges that he had with management regarding his disabilities and his training time. allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 5 We note that Complainant raised a fourth claim, alleging that the Agency subjected him to discrimination on April 11, 2019, when he was denied unemployment benefits. The Agency, however, dismissed this claim for failure to state a claim. Because Complainant has not challenged this determination on appeal, we need not consider it. 2020004816 4 Complainant subsequently filed a motion to reconsider the May 8, 2020 order, wherein he again requested the opportunity to engage in full discovery so that he could obtain comparator evidence and search for the real reason for his removal. In requesting reconsideration, Complainant emphasized that his representative did indeed have a death in her family and was sick herself with Covid-19. Complainant further maintained that his representative was not allowed to participate in the conference call. On May 28, 2020, the AJ denied Complainant’s request for reconsideration. In denying Complainant’s request, the AJ acknowledged Complainant’s contention that his failure to submit the required submissions was due to his representative’s personal issues; however, the AJ was unpersuaded by Complainant’s explanation given that Complainant had failed to file the required submissions and had only requested postponement several days after the deadline had passed. The AJ also maintained that she never prohibited Complainant’s representative from attending the pre-hearing conference call, and she emphasized that she did not even know whether Complainant had a representative because Complainant did not designate anyone to represent him or copy his representative in his filings. As for Complainant’s request for full discovery, the AJ declined to reconsider her decision on that matter, given that Complainant never established a need for discovery, as his complaint contained only bare assertions. Complainant subsequently withdrew his request for a hearing. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), which found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In finding no discrimination, the Agency first addressed claim 1, concerning Complainant’s hostile work environment claim when his Supervisory ISO allegedly made racist comments towards him, gave him poor reviews, and issued him write ups. Having reviewed the record, the Agency found that Complainant could not establish that he had been subjected to racist comments, given that his Supervisory ISO vehemently denied making the alleged racist comments. As for the poor reviews, the Agency found that the poor quarterly review that Complainant received on January 29, 2019, was due to his failure to attain a 70% efficiency rate. In so finding, the Agency rejected Complainant’s allegation that the poor review was related to his Supervisory ISO’s failure to “zero out” his productivity and efficiency statistics to account for a system glitch when everyone was locked out. Citing to the affidavit from Complainant’s Supervisory ISO, the Agency found that Complainant’s “access issues were limited to administrative type systems and were unrelated to the systems required to complete Complainant’s job functions in a training capacity.” Thus, the Agency determined that there was no causal link between this incident and Complainant’s protected characteristics. The Agency also found that Complainant’s Supervisory ISO did not engage in harassment in writing Complainant up for working past 6:00 p.m., as Agency policy expressly prohibited uncertified employees from working past 6:00 p.m. With regard to claim 2, concerning the alleged denial of Complainant’s request for reasonable accommodation in August 2018, September 2018, October 2018, December 2018, and January 2019, the Agency found that Complainant had only filed one reasonable accommodation request in October 2018, for private proctoring and extended test time, which the Agency granted in full. 2020004816 5 The Agency noted that “the record did not contain any evidence that Complainant requested any additional accommodations, either formally or informally, outside of the October 2018, accommodation request that was approved.” As such, the Agency concluded that Complainant failed to show that Complainant was ever denied a reasonable accommodation. Finally, the Agency rejected Complainant’s allegation of discrimination in claim 3, concerning his removal from federal service during his probationary period. Having reviewed the affidavit of the Deputy Director, the Agency determined that the removal action was based on Complainant’s poor performance in the area of technical proficiency, which affected Complainant’s ability to provide timely and accurate decisions to customers. Citing to the Deputy Director’s affidavit, the Agency noted that Complainant’s chain of command had concerns about the numerous errors in his work product, as well as his inability “to work independently or to follow rules, regulations, and standard operating procedures regarding immigration law.” Furthermore, the Agency noted that Complainant’s repeated violated the Agency’s prohibition on working outside of normal duty hours. In finding no discrimination on claim 3, the Agency considered the two individuals whom Complainant named as comparators; however, the Agency found no evidence that these individuals had the same performance issues as Complainant, as the record clearly showed that both of these individuals had efficiency ratings of 78.59% and 140.96% respectively, which were far in excess of Complainant’s 13% rating. The Agency therefore concluded that Complainant failed to prove his allegations of discrimination. This appeal followed. CONTENTIONS ON APPEAL Through his attorney, Complainant challenges the Agency’s finding of no discrimination. We shall discuss Complainant’s specific contentions, infra. The Agency opposes the appeal and requests that the Commission affirm its final decision. We shall also discuss the specifics of the Agency’s contentions, infra. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). 2020004816 6 ANALYSIS AND FINDINGS Preliminary Matters On appeal, Complainant contends that the Agency violated 29 C.F.R. § 1614.108(b) when it “failed to fully investigate the portion of [Complainant’s] allegations” concerning his February 2019, opposition to his Supervisory ISO’s discriminatory actions and did not collect appropriate testimony and data regarding the extent to which management retaliated against him for requesting reasonable accommodation. He argues that the Commission should issue default judgment against the Agency for its failure to fully investigate the complaint, or, in the alternative, remand the complaint for a supplemental investigation. The Agency counters by noting that Complainant had numerous opportunities to address these concerns, including when he received the ROI and at the hearing stage. The Agency maintains that he squandered the opportunity to engage in full discovery by failing to comply with the AJ’s orders and ultimately withdrew his request for a hearing. Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). Having reviewed the record, we are disinclined to issue default judgment against the Agency or remand the complaint for any alleged deficiencies in the record, as we fail to see how the Agency failed to investigate Complainant’s February 2019 opposition activity. In this regard, we note that the ROI contains an email from Complainant’s Section Chief, memorializing her conversation with Complainant on February 7, 2019. ROI at 000497. In that email, Complainant’s Section Chief noted that she encouraged Complainant to talk with his Supervisory ISO regarding his concern that he was being treated differently than other ISOs. Id. In response, Complainant stated that he would follow his Section Chief’s advice and discuss his concerns with his Supervisory ISO. Id. While we are mindful that Complainant asserts that his Supervisory ISO subsequently took a series of retaliatory actions against him as reflected in claims 1-3, for the reasons discussed below, we find that the Agency had legitimate, nondiscriminatory reasons for the alleged actions. 2020004816 7 As for Complainant’s contention that the Agency violated 29 C.F.R. § 1614.108(b) when it did not collect appropriate testimony and data regarding the extent to which management retaliated against him for requesting reasonable accommodation, we are unable to determine how the Agency failed to collect appropriate testimony and data, as Complainant did not articulate the nature of the Agency’s failings. We note that the hearing stage is a continuation of the EEO fact- finding process. See Mario H. v. Dep’t of Commerce, EEOC Appeal No. 0120150189 (Oct. 14, 2016). We ultimately agree with the Agency that Complainant squandered his opportunity to develop the record due to his noncompliance with the AJ’s orders. As such, we find that the record is adequately developed. We turn now to the merits of the complaint. Disparate Treatment - Claims 1 and 3 For Complainant to prevail on his claims of disparate treatment, he must satisfy 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 Constr. 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency has articulated legitimate reasons for its actions. With regard to the progress review, our review of the record shows that the Supervisory ISO gave Complainant a negative performance rating on January 29, 2019, because Complainant had efficiency ratings under 10% for the month of December and had multiple errors in administrative and timekeeping tasks. ROI at 00823-24. Concerning, the letter of counseling dated January 30, 2019, our review of the letter shows that the Supervisory ISO issued the letter because of Complainant’s failure to follow the Supervisory ISO repeated instruction to not work past 6:00 p.m. without prior supervisory approval. Id. at 000718. As for removal action, we note that the Deputy Director asserted that she removed Complainant from federal service because Complainant exhibited poor performance in the area of technical proficiency, which affected his ability to provide timely and accurate decisions to customers. ROI at 000618-21. In this regard, the Deputy Director maintained that Complainant’s work contained numerous errors and that he was not “able to follow rules, regulations, and standard operating procedures regarding immigration law.” Id. at 000515-16. 2020004816 8 Furthermore, the Deputy Director asserted that her decision to remove Complainant was also based, in part, on his failure to follow management’s instructions to not work past 6:00 p.m. without supervisory approval. Id. Complainant disputes the Agency’s articulated reasons. In arguing pretext, Complainant initially notes that the Supervisory ISO gave him an “Achieves Expectations” rating for the period between June 25, 2018 to September 30, 2018. Complainant notes that he subsequently attended the Agency’s basic training program from October 2018 through late November 2018. He maintains that prior to leaving for basic training, there was a glitch in the computer system that caused all new hires to be locked out. Complainant asserts that around December 2018, shortly after he returned from basic training, his Supervisory ISO zeroed out those hours for all of his employees, including one of his male colleagues (C2), so that they would not be adversely affected by the glitch. Complainant asserts that his Supervisory ISO’s failure to “zero out” his hours adversely affected his efficiency ratings because he was charged hours that he could not work. Complainant also maintains that his Supervisory ISO, in rating him negatively on the progress review, relied on statistics that should not have been counted because he was in training for much of the rating period. Additionally, Complainant asserts that the Agency, in deciding whether to remove him, omitted his efficiency ratings for February and March 2019, when he finally attained certification. He further asserts that the Agency made the decision to remove him without considering the December 19, 2018, email from his mentor noting his overall improvement. As for his alleged errors in administrative and timekeeping tasks, Complainant asserts that there is only one counseling memorandum in the record regarding Complainant staying past 6:00 p.m. He states that he only stayed late only a handful of times because his Supervisory ISO assigned him work near the end of the day and asked him to complete the file before he left. Lastly, Complainant maintains that the comparator information that the Agency provided shows that C2’s high efficiency rating was based on C2’s post-certification performance, whereas his numbers were based on the period when he had not yet been certified. Having reviewed the record, we find no persuasive evidence that the Agency acted with discriminatory motive. With regard to the negative performance review, while we acknowledge Complainant’s contention that the reason for his low efficiency rates was due to his Supervisory ISO’s failure to “zero out” his statistics during the system, we find that his Supervisory ISO had a nondiscriminatory reason for not doing so. In this regard, we noted that his Supervisory ISO averred during EEO investigation that he did not zero out Complainant because Complainant was still in training status and working closely with his mentor to achieve certification. ROI at 000451. Moreover, as reflected in the record, the systems that Complainant could not access were unrelated to his case completion functions, and therefore had minimal, if any, impact on Complainant’s productivity. In reaching this conclusion, we are mindful that Complainant named at least one individual who allegedly had his numbers zeroed out by his Supervisory ISO. However, we do not find Complainant’s comparator to be similarly situated to Complainant because the record shows that the named individual had already completed training and was not in a similar training status as Complainant. Id. at 000450. 2020004816 9 Given that Complainant’s mentor corroborated his Supervisory ISO’s negative assessment of Complainant’s work, we conclude that Complainant has not persuasively shown that his Supervisory ISO issued him a negative progress review based on discriminatory animus. Id. at 000570. As for the letter of counseling, we are also disinclined to find in favor of Complainant on this issue. By Complainant’s own admission, he worked outside the regular working hours despite his Supervisory ISO’s repeated instruction for him to stop. See Complainant’s Appellate Brief at 22. We find no evidence that Complainant’s Supervisory ISO engaged in discrimination by admonishing Complainant for failing to comply with his instruction to work only during core Agency hours. Finally, we turn to Complainant’s removal. As discussed above, the Deputy Director removed Complainant because of her concerns about Complainant’s technical proficiency. While we understand that Complainant vehemently disagrees with the decision to remove him from federal service, we cannot say that the removal action was discriminatory in light of the Deputy Director’s legitimate concerns about Complainant’s performance. We note that both the Supervisory ISO and the mentor shared the Deputy Director’s concerns. ROI at 000570 and 000823-24. In so finding, we are mindful that the Probationary Review Board did not consider Complainant’s February and March efficiency reports in determining whether to retain Complainant; however, the record reflects that these reports had not yet been generated. We note that agencies have broad discretion to remove probationary employees. As we find no evidence of discriminatory motive, we decline to second guess the Agency’s assessment of Complainant’s performance. In reaching this conclusion, we considered Complainant’s reference to individuals whom he alleged had sub-70% efficiency ratings like him but were not removed. Having reviewed the record, we agree with the Agency that these comparators were not similarly situated to Complainant because the record persuasively fails to show that these comparators had the same performance deficiencies as Complainant. See ROI at 000541 (noting that neither individual had ratings below the minimum cumulative expected efficiency). For these reasons, we conclude that Complainant cannot prevail on his claims of disparate treatment. Claim 2 - Denial of Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). To establish that the Agency denied Complainant a reasonable accommodation, Complainant must show that: (1) he was an individual with a disability; (2) he was a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). 2020004816 10 Assuming arguendo that Complainant was a qualified individual with a disability, we find no evidence that he was ever denied reasonable accommodation. Our review of the record shows in October 2018, Complainant sought a reasonable accommodation for test-taking. That request was granted in full. Though Complainant alleges on appeal that he subsequently asked his Supervisory ISO and his mentor for additional accommodations, to include relocation away from copier and noise cancellation headphones, we find no evidence that Complainant ever requested these accommodations. Indeed, we note that both Complainant’s Supervisory ISO and Complainant’s mentor denied being aware of these requests. See ROI at 000458 and 000566-67. Because Complainant cannot persuasively establish that he requested the additional claimed accommodations, we are unable to conclude that he was ever denied a reasonable accommodation. Hostile Work Environment - Claims 1-3 To establish a claim of harassment, Complainant must show that: (1) he belongs to a 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 her 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 Agency. 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 Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). As an initial matter, we find that a finding of harassment is precluded on Complainant’s claims of discrimination relating to the negative performance review, counseling letter, denial of reasonable accommodation, and removal action, given our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). With regard to Complainant’s allegation that NS1 harassed him by making racist and homophobic comments, we find that Complainant cannot show that he was ever subjected to racist and/or homophobic remarks by NS1 or anyone else. Complainant bears the burden of proving, by a preponderance of the evidence, that the alleged discriminatory acts occurred. While we acknowledge that Complainant vehemently asserts on appeal that the alleged incidents occurred, the record reflects NS1 has denied the allegations. See ROI at 000445-49. Because Complainant withdrew his request for a hearing, we do not have the benefit of an AJ’s credibility determinations of the witnesses in the case. 2020004816 11 Based on our review of the record evidence, we conclude that Complainant cannot meet his burden because the evidence is at best equipoise. See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020004816 12 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for 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 October 12, 2021 Date
