[Redacted], Gregory F., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2022002277 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregory F.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022002277 Hearing No. 440-2019-00199X Agency No. 63-2018-00224 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 16, 2022, 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. The Agency’s final order finding no discrimination is AFFIRMED. BACKGROUND A1 (Black, female), Regional Director, of the Agency’s Chicago Regional Office (CRO) interviewed Complainant, who was then working as a Supervisory Survey Statistician in Jeffersonville, Indiana, for a detail to the position of Assistant Regional Director (ARD) in the CRO. On or around July 5, 2017, A1 selected Complainant for a time-limited detail to an ARD position. The CRO had two ARD positions. C1 (Black, female) had held one slot since 2016. Because of the retirement of C2, the other permanent ARD, a vacancy was created to which Complainant was detailed. On July 14, 2017, Complainant signed a Notice of Conditions of a five-year Time-Limited Detail, where he agreed that, “I understand that I may be returned, at any time, to the position from which I was detailed, or to a position of equivalent grade and pay. . . .” 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. 2022002277 2 On July 30, 2018, Complainant filed a formal complaint of discrimination against the Agency. The following issues was accepted: Whether the Agency discriminated against Complainant based on his race (Caucasian), sex (male), and in retaliation (EEO activity) and/or subjected him to harassment constituting a hostile work environment when: (1) From early 2018 when Complainant submitted annual leave requests for the full weeks of June 11 and July 23, 2018, to [A1], Regional Director, [A1] on or about April 18, 2018, being fully aware of his pending leave request, directed the scheduling of a Field Supervisor meeting during the week of June 11, 2018, and required Complainant’s attendance at the meeting thereby denying his request for annual leave for the full week and would only approve his annual leave request for the remainder of the week after the conference. When Complainant asked [A1] if a different week in June 2018, would be accepted for Complainant to have an entire week’s leave, [A1] said [“no.”] On June 13, 2018, [A1] informed Complainant that she was denying his annual leave request for the entire week of July 23, 2018, due to a survey deadline which had been known for several months and informed him that she would only approve him having two days of annual leave for that week. When Complainant inquired if he could switch his annual leave request to the week of August 6, 2018, [A1] replied on June 15, 2018[,] that she could not approve him being off at that time because another Field Supervisor meeting originally scheduled for a different week was being rescheduled for the week of August 6, 2018; (2) [A1] has access to the reserved section of the parking garage where the CRO is located, however Complainant’s request to have access to the reserved section of the parking garage was denied; (3) In the current layout of the CRO, the two ARD offices are different in both size and in the quality of furniture. With respect to the current project[,] which is underway to remodel the office, not only did the recently approved floorplans not enlarge Complainant’s office to make it the same size as the workspace of [C1], the other ARD, it was made even smaller; (4) On June 15, 2018, Complainant notified [A1] of his concerns of discrimination and instead of addressing his grievances, she replied to him, “I offer you a platform to discuss and assist you with a position that maybe a better fit. We can discuss other alternatives which may suit your personal needs better than being an Assistant Regional Director;” and 2022002277 3 (5) On August 13, 2018, Complainant was informed by [A1] that his detail to the CRO, which had a not to exceed date of five years with the possibility of being made permanent without further competition, was being cut short at just over a year. Claim 1 Early in late December 2017 or January of 2018, Complainant submitted annual leave requests to A1 for the full weeks of June 11 and July 23, 2018. In a January 1, 2018, email message, A1 wrote Complainant and C1 about the amount of leave taken by them. She stated that, “Policy for 2018, your approved leave must not coincide with both coordinators [time] out. The two of you are missing too many critical issues and it is causing some major concerns on my part. I realize this position has many challenges and will try and meet you with support, but I need leadership in the office right now.” From March 5 - 9, 2018, Complainant took 40 hours of annual leave, which was approved by A1. On March 16, 2018, A2, Assistant Division Chief for Administration, Field Division, sent an email message to all Regional Directors and Assistant Regional Directors with the subject line: “IMPORTANT: Information Regarding Planning Field Supervisor Meetings for July 9 - August 31, 2018.” In this message, A2 informed the Regional Offices that they were to “begin planning for your [Field Supervisor] Meetings for July 9 - August 31, 2018.” She further indicated that headquarters would review each region’s plan before implementation of the meetings. There would be two - three meetings, and supervisors would only be expected to attend at least one meeting, which would last one and half days. The plans were due by April 13, 2018, for review and approval. According to Complainant, on or about April 18, 2018, being fully aware of his pending leave request, A1 scheduled a Field Supervisor (FS) meeting during the week of June 11, 2018, and required Complainant’s attendance at the meeting. Therefore, A1 denied his request for annual leave for the full week. Because A1 would only approve his annual leave request for the remainder of the week after the conference, Complainant asked A1 if a different week in June 2018, would be acceptable so that he could have an entire week of leave, but she told him no. A1 approved Complainant to take annual leave, as follows: 3.5 hours of annual leave on June 13; 8 hours of annual leave on June 14; and 8 hours of annual leave on June 15. From June 11 - 12, 2018, the CRO held a FS meeting in Traverse City, Michigan. Among the speakers at this meeting were A1, Complainant, and C1. On June 13, 2018, A1 informed Complainant that she was denying his annual leave request for the entire week of July 23, 2018, due to the Current Population Survey (CPS) and the American Community Survey (ACS) deadlines, which had been known for several months. She informed Complainant that she would only approve him for two days of annual leave for that week. 2022002277 4 When Complainant asked if he could switch his annual leave request to the week of August 6, 2018, A1 replied, on June 15, 2018, that she could not approve him being off at that time because a FS meeting might be held in Milwaukee that week. The meeting had originally been scheduled for a different week. That afternoon, Complainant asked A1 when, during his children’s summer break, would he be allowed to take off an entire week to take his family on vacation. He noted the fact that C1 had taken the entire week of May 28th off.2 Complainant went on to state that, “I feel like I am being targeted specifically to prevent me from having a week off with my family this summer…Meanwhile, [C1’s] leave requests have been approved.” The record indicates that, from August 20, 2017, until September 1, 2018, A1 approved Complainant’s request to take 196 hours of annual leave, and from August 20, 2017, until September 1, 2018, she approved C1’s request to take 209.5 hours of annual leave. C1 stated that that she also had leave request disapproved between May and August, 2018. C1 maintained that she lost 106 hours of leave in 2018, and ended up donating 40 hours. C1’s understanding of A1’s leave policy was that “we needed office coverage. I changed some of my scheduled leave to cover for [Complainant]. [Complainant] had children and vacation plans, I tried to work around his schedule.” Claim 2: Between September and November 2017, Complainant alleged that he encountered another CRO employee in the parking garage who stated to him, “something like, ‘You don’t have a spot in the reserved section with [C1] and [A1]?’” Complainant stated that the next time he saw A1, he asked her if he would be able to get access to the reserved section.3 A1 told him to see HR1, the Human Resources Specialist, who “had the information on whether or not spots were available.” Complainant stated that he spoke with HR1 about the issue and was told that she would let him know. At some point later, she told him that a spot was not available. According to Complainant, the issue did not come up again until June 2018. In his June 15, 2018 response to A1 regarding leave, Complainant also wrote: “[f]urthermore, back in September when I discovered that [C1] has access to a spot in the reserved section of the garage, my request to have access was denied.” According to A1, upon Complainant’s arrival, the office was in the middle of renegotiating its lease for the space. At the time, they were informed that they did not have a reserved parking spot available. 2 The record indicates that A1 approved C1’s annual leave request for an entire week’s leave from May 28, 2018, through June 4, 2018. 3 According to the record, the parking garage has approximately four levels. There is a reserved section on the first level with direct access to the basement tunnel which connects to the CRO building. From the higher levels, access to the building is gained by taking an elevator or stairs to the basement tunnel. 2022002277 5 After the new lease was signed, it was discovered that C2 was still listed as having access. Therefore, on July 25, 2018, A1 asked HR1 to remove C2 and to give Complainant C2’s parking access.4 Claim 3: On August 20, 2017, when Complainant began his detail, he was assigned the only vacant office. According to Complainant, the two ARD offices were different in both size and the quality of furniture. The office subsequently proposed a remodeling plan that Complainant felt did not enlarge his office to make it the same size as C1’s office. Complainant felt that it made his office even smaller. In his June 15, 2018, response to A1, Complainant wrote, “[a]lso, the most recent version of the new [Regional Office] floorplan has my office being made smaller even though it is already quite a bit smaller than [C1].” A1 stated that when the office was designed some 14 years ago the region only had one ARD, but after a realignment in 2012, another ARD was added. To accommodate this change, the payroll office was converted into an ARD office. That office, occupied by C1, was larger than the other ARD office now used by Complainant (which had been previously used by C2). A1 also noted that the upcoming renovation was still in the design phase and that no final decision had been made. Claim 4: On June 15, 2018, A1 responded to Complainant’s email about his concerns. In her response, she stated: [Complainant], I realize the change to a regional office setting vs [National Processing Center] has been different and challenging. Surveys are ever evolving and managing workflows and staff requires a great deal of multitasking and leadership. When we have a number of vacancies that we are managing it is expected that we all pitch in to cover. Understandable you have never worked through a Census in a region and may not understand what is required. So [,] I offer you a platform to discuss and assist you with a position that may be a better fit. She also stated that: We can discuss other alternatives which may suit your personal needs better than being an Assistant Regional Director. Heading towards a census environment will definitely challenge every manager. I have set an [appointment] for Monday to further discuss. I have approved leave for you for more than a few days and tried to accommodate your request. In fact, you have been approved for most of the 4 Complainant, in an August 13, 2018 email to A1, confirmed that his access card was working. 2022002277 6 time that you requested since you arrived. Most notable, specifically, this past week after the FS Conference in Traverse City. I always look across the management team for coverage. I would like to assist you in getting to a position that best fits your needs. Claim 5: On June 16, 2018, Complainant replied to A1’s email message from the previous afternoon. In his message he stated, “I am not interested in relocating my family again after uprooting them and moving them here less than a year ago. Nor am I interested in a position that would increase my daily commute.” He also stated that, “I feel like I have no other choice than to avail myself of the EEO process.” On June 17, 2018, he sent an email message to the EEO Office General Mailbox and a copy to A3, then Acting Director, Field Operations and A1’s supervisor, with the subject line “EEO Complaint 2018.06.17.” In that email, Complainant attached a list of his concerns about leave, parking, and the size of his office and alleged that he was discriminated against. On or around June 18, 2018, Complainant and A1 met and discussed the possibility of Complainant being reassigned to the position of Assistant Regional Census Manager at the Regional Census Center (RCC) in Chicago. From July 11 - 12, 2018, the CRO held an FS meeting in Little Rock, Arkansas. Among the attendees, were A1, Complainant, and C1. On July 15, 2018, A1 sent an email message to Complainant regarding what she saw as his poor performance on the Current Population Survey. She wrote, “I am concerned that some areas of improvement . . . was not put in place for this interviewing month. We spoke about what was expected.” A1 indicated that this was a “major concern” for her. On July 17, 2018, A3 forwarded Complainant’s email message regarding his EEO complaint to A1 and stated, “Let’s discuss the attached this week.” Later that week at an FS meeting, A3 and A1 discussed Complainant’s email. Later, Complainant was approved by A1 to take 48.75 hours of annual leave during Pay Period 15: 9 hours of annual leave on July 23; 9 hours of annual leave on July 24; 9 hours of annual leave on July 25; 9 hours of annual leave on July 26; July 27 was an AWS Day; 3.5 hours of annual leave on July 30; and 9.25 hours of annual leave on July 31. On August 12, 2018, Complainant wrote A1 stating that: I have discussed the options you presented to me extensively with my family. Due to the 5+ hours per week of additional commute time a duty station at the RCC would create over and above what my commute is now, we feel that a duty station at the RCC would be too much of a strain on the family. My family comes first and being gone 5+ hours more than I already am[,] is just not a workable situation. 2022002277 7 I would be more than happy to fill the ARCM role or any other role you would place me in if it had a duty station of the RO, Merrillville ACO, or home, but at this time I cannot agree to accepting a position with a duty station of the RCC for family reasons. On September 1, 2018, Complainant’s detail to the position of Assistant Regional Director ended and he was returned to the position of Supervisory Survey Statistician in Jeffersonville, Indiana. Also in September 2018, A1 promoted C1 to Deputy Regional Director. A1 subsequently selected two individuals who worked under Complainant as coordinators to fill the two open ARD vacancies. After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. In December 2019, the Agency filed a Motion for Summary Judgment, which was opposed by Complainant. On January 22, 2022, the case was transferred from the initial AJ to AJ2. AJ2 granted the Agency’s motion for summary judgment and issued a decision without a hearing in favor of the Agency on February 14, 2022. AJ2 found, with regard to Complainant’s opposition that: Many of Complainant’s alleged facts or disputes are unsubstantiated, not relevant or material, or appear to misinterpret facts set forth by the Agency in its Motion for Summary Judgment or the record itself. In addition, upon a review of Complainant’s Response, his objections are not clear as to each fact he claims to be in dispute. AJ2 further found that: Complainant’s Response fails to provide facts or evidence to counter the Agency’s legitimate non-discriminatory, non-retaliatory reasons for its actions. I find that the Complainant cannot show pretext. For example, to show pretext, the Complainant suggests that [A1’s] testimony in the record shows pretext. Reviewing [A1’s] declaration and record, I disagree. The fact that [A1] was able to provide more detail during discovery than in her declaration does not suggest pretext; rather it simply allows discovery to work as it is intended (i.e., flushing out more fully the details). In addition, a finding of a hostile work environment is precluded by the determination that Complainant cannot establish any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. Therefore, no further inquiry is necessary as to whether the incidents complained of are severe or pervasive to rise to the level of harassment. The Agency issued its final order adopting AJ2’s finding that a decision in favor of the Agency was warranted. The instant appeal followed. 2022002277 8 On appeal, Complainant argues that: 1. AJ2 erred granting summary judgment without ruling on his outstanding motion to compel discovery; 2. AJ2 erred when she granted the Agency’s motion for summary judgment without considering whether he had produced evidence of a prima facie case; 3. AJ2 erred when she determined that the Agency had sufficiently proffered admissible evidence of its reasons for terminating Complainant’s detail; and 4. AJ2 erred when granted summary judgment on the basis that Complainant failed to raise a genuine issue of fact to rebut the Agency’s reasons for terminating his detail. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). Appeal Contention 1: Complainant, on November 14, 2019, filed a Motion to Compel the Agency to provide his and C1’s personnel files. In his response to the Agency’s Motion for Summary Judgment, Complainant argued that: The Agency has refused to produce [C1’s] personnel records, which contains her performance management record. The Agency has not produced Complainant’s personnel file either. Complainant moved to compel the production of those documents, but there has been no ruling on. As a result, the Agency has prevented Complainant from producing more detailed evidence of [C1’s] comparative performance. This puts Complainant at an unfair disadvantage in responding to the Agency’s claims about his performance in greater detail. As noted above, on February 14, 2022, AJ2 granted summary judgment in the Agency’s favor without ever ruling on the Complainant’s Motion to Compel or the Agency’s response. AJ2’s failure to rule on Complainant’s motion, even if we assume to be an error for the sake of argument, was harmless because Complainant has not established why C1’s personnel records are material to any matter in dispute in this case. Unlike Complainant who was on a detail to the CRO as an ARD, C1 was already permanently in the position. 2022002277 9 Assuming for purposes of summary judgment that A1 found C1’s performance to be deficient, as she did with Complainant, she would not have been able to merely terminate a detail as was the case with Complainant. Moreover, Complainant has not indicated what specific documents from C1’s personnel file, that he does not already have access to, would create a genuine material dispute of fact concerning the claims raised in his complaint. Appeal Contentions 2, 3, and 4: The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. The Agency provided legitimate, nondiscriminatory reasons for its actions and Complainant did not present evidence that created a genuine issue of material fact showing pretext. Regarding claim 1, Complainant may have believed that he was “being targeted specifically to prevent [him] from having a week off with [his] family,” but the record indicates that during the period he was submitting his requests, A1 needed him and C1 to participate in FS meetings that were being scheduled. Although Complainant was not approved for the entirety of his request, the record indicates that he was approved for significant amounts of leave for the week of June 13, and, after A3 spoke to A1, Complainant was approved to take leave for the entire week of July 23, which is what he requested. Regarding claim 2, there is no evidence that discrimination or retaliation played a role. The record indicates that HR1 mistakenly told Complainant that no parking spots were available in the reserve section on the first level. When it was discovered that C2 was still being listed as having access, the issue was resolved in Complainant’s favor. 2022002277 10 Pretext analysis is not concerned with whether the actions were unfair or erroneous but whether the actions were motivated by discrimination. Gregg B. v. Dep’t of the Army, EEOC Appeal No. 0120151783 (Jun. 7, 2017); Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). With respect to claim 3, Complainant was placed in the only vacant office when his detail began, i.e., C2’s former office. This office was smaller than C1’s office, the former payroll office, which had been converted. As for the renovation plans, the record indicates that nothing had been finalized at the time Complainant saw them; therefore, he merely speculated that his office was going to be significantly smaller and not as well furnished. With regard to claim 5, the Agency argued that A1, as early as January 1, 2018, only a few months into Complainant’s detail, raised concerns about the quality of his performance. About a month later, during Complainant’s progress review, she put him on an Individual Development Plan “to assist with his development. Specifically, to proactively manage his area of responsibility. [Complainant] needs to develop into the role of an Assistant Regional Director - accepting responsibility and accountability for the outcome of his assigned area.” Later, A1 expressed concern that Complainant did not seem to care about the work and was not engaged in the CPS. The day before Complainant mentioned that he would engage in EEO activity, A1 was already suggesting finding another position for Complainant that would “suit [his] personal needs better.” In July, A1 again raised concerns to Complainant that areas of improvement for the CPS were not put in place and that this amounted to a “major concern.” As a result, A1 offered Complainant a reassignment from the detail to another regional office, but he declined. Therefore, she terminated the detail.5 Even assuming, arguendo, that Complainant established a prima facie case of discrimination based on race and sex with respect to claims 1, 2, and 3, and race, sex, and reprisal with regard to claim 5, we find no evidence that raises a genuine issue of material fact that discriminatory animus played any role in these matters. Complainant’s opposition of summary judgment must consist of more than just bare assertions, general denials, conclusory allegations, or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. Fernandes v. U.S. Postal Serv., EEOC Appeal No. 0120113904 (Jul. 25, 2013) (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder simply could not find in his favor. 5 In her initial statement, during the investigation, A1, when asked why she terminated Complainant’s detail, merely referred the Investigator to the Notice of Conditions of a Time- Limited Detail, where Complainant agreed that he could be returned, at any time, to the position from which he was detailed. Although Complainant argued on appeal that A1 did not provide a sufficient explanation for terminating his detail, we agree with AJ2 that A1’s statement, the documentary record, and her deposition testimony provided sufficient reason for her actions, i.e., she believed Complainant was not performing adequately in his detail and she decided to move him either to another regional position or return him to his original position. 2022002277 11 Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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). 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). Regarding Complainant’s hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail with respect to claims 1, 2, 3, and 5. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency in claims 1, 2, 3, and 5 were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). With respect to claim 4, at the outset, we do not find that A1’s comments were severe or pervasive enough to create a hostile work environment; nor do we find any evidence that they were based on Complainant’s race, sex, or in retaliation for his protected EEO activity. We find it important to note again that A1’s June 15 comments were in response to Complainant’s email expressing his displeasure with the denial of his leave request, the lack of a reserved parking spot, and the size of his office. Prior to June 16, Complainant had not mentioned the possibility of engaging in protected EEO activity. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing, and evaluating performance, providing job- related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep't of Transportation, EEOC Appeal No. 0120151781 (Jun. 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, we conclude that AJ2 correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting AJ2’s decision. 2022002277 12 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2022002277 13 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 2, 2023 Date