[Redacted], Kandace I, 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Oct 12, 2022

Appeal No. 2021004151 (E.E.O.C. Oct. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kandace I,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2021004151 Hearing No. 520-2021-00159X Agency No. DOI-APC-BSEE-19-0597 DECISION On July 15, 2021, 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 June 16, 2021, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Engineer, Chief of the Offshore Safety Improvement Branch (OSIB), GS-15 at the Agency’s Office of Offshore Regulatory Programs (OORP), Bureau of Safety and Environmental Enforcement (BSEE) in Sterling, Virginia. Report of Investigation (ROI) 1 at 73. Complainant’s first-line supervisor was the Director of BSEE (the Director), a political appointee, when she was detailed as Acting OORP Chief; her second-line supervisor when she was Acting Deputy Chief; and Complainant’s third-line supervisor to her position of record. Id. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2021004151 A Senior Executive Service (SES), the Regional Director for the Gulf of Mexico Region (GOMR [Regional Director]); a Senior Technical Advisor to the Regional Director (Senior Technical Advisor); and the Chief of the Office of Safety Management, Regional Field Operations, a Petroleum Engineer (Petroleum Engineer) were all GOMR, BSEE, employees located in New Orleans, Louisiana. They were not in Complainant’s chain of command. Likewise, an Associate Director for Administration, SES-level, Office of Administration (Associate Director) BSEE was also not in Complainant’s chain of command. According to Complainant, she engaged in prior EEO activity when she reported a claim to the Agency’s EEO office in March of 2017. ROI 1 at 73-4 and 783. She alleged that these individuals subjected to reprisal as a result of that activity. ROI 1 at 134. In April 2016, Complainant served as co-team lead with Senior Technical Advisor on the second Risk Based Investigation (RBI). ROI 1 at 335. On April 18-19, 2016, Petroleum Engineer circulated a draft “Shell Auger” RBI Plan developed by the GOMR team to the RBI group ahead of a team meeting. ROI 1 at 1408-09. The Regional Director later asked Complainant to draft the third RBI report; and supervisor asked her to write it because the first draft was not well-written, and she was the expert. According to Complainant, “[I]t was because I could do the work.” ROI 1 at 176-77. Complainant wrote that she needed to strategize on this [Petroleum Engineer’s draft document] as “I am worried that presentation of this kind of data in this format makes us look really poor.” ROI 1 at 148. However, in response to Petroleum Engineer’s draft document of the Shell Auger RBI plan to the entire RBI team, Complainant commended him for drafting a “very comprehensive document.” In April or May 2016, during a joint meeting between BSEE and Shell Company employees, Senior Technical Advisor did not take a copy of a draft document from Complainant. ROI 1 at 332. On May 22, 2016, Senior Technical Advisor advised Complainant that he would not be able to spend the night during an offshore inspection because he had to take new hires on an orientation visit. ROI 1 at 144 and 1414. Complainant commented: “This makes BSEE look really bad.” Id. at 1414. She also felt “personally embarrassed…having my team disappear out from under my nose.” ROI 1 at 148. Senior Technical Advisor did ultimately stay the night offshore during the visit. Id. On February 6, 2017, Senior Technical Advisor emailed Complainant stating that GOMR personnel would prefer to keep the inspection team BSEE only. ROI 1 at 1396. No one on the RBI team had “final selection authority” regarding the makeup of the team. ROI 1 at 160. On February 6, 2017, Complainant then first-line supervisor (Supervisor) informed Complainant that she would no longer be a team lead on the RBI pilot because of the tight turnaround to provide a response to Government Accountability Office (GAO) regarding the last RBI program. ROI 1 at 163. On July 10, 2019, Petroleum Engineer emailed Complainant that the “Hoisting Evacuation Inclusion in Emergency Response Plans” Safety Bulletin should be posted on the Safety Alert or Safety Bulletin page. Delay in the publication of safety alerts or bulletins has previously been an issue at BSEE. ROI 1 at 309 and 1549. 3 2021004151 On May 21, 2019, Complainant emailed Regional Director regarding his review of a draft chapter for the National Aviation Program Manual. ROI 1 at 1508. On July 1, 2019, Regional Director responded to Complainant that he thought he had reviewed it previously and signed off on the document on that day. ROI 1 at 1507 In 2017, a GAO audit of BSEE for the previous year was conducted, resulting in a written report. ROI 1 at 149. The 2016 GAO Report included references to unnamed “BSEE regional official(s).” ROI 1 at 1436, 1439, and 1442. The 2016 GAO Report stated that an “operator” sent a letter expressing frustration with the Bureau’s uncoordinated effort. Id. at 1439. The 2016 GAO Report stated that BSEE did not provide a report to the operators of the first and second pilot facilities. ROI 1 at 1441. Complainant felt targeted, later alleging that Petroleum Engineer criticized her in November 2016 for failing to provide Shell with the second pilot RBI audit report. Her “Response to GAO Report” included quotes from the GAO report referencing BSEE regional officials, rather than Petroleum Engineer or Senior Technical Advisor. ROI 1 at 1436, 1439, and 1442. Complainant was not named in the GAO report; and she had not been present for, or ever heard Petroleum Engineer or Senior Technical Advisor express any sentiments against her. In May 2017, the National Academy of Science (“NAS”) was awarded a contract to do an overview of inspection programs, including GOMR. ROI 1 at 179. On July 7, 2017, Complainant discussed BSEE offshore energy production statistics with a named official (Official 1). ROI 1 at 1505-06. Between January 20, 2018 and January 22, 2018, the Director emailed Complainant and Supervisor a number of questions regarding the NAS study. ROI 1 at 1448-49. According to Complainant, the Director’s email incorrectly summarized a meeting they had several days prior. She however admitted, “Your summary is technically correct[.]” ROI 1 at 186-87. On May 16, 2018, Associate Director emailed Complainant to review a revised draft statement of work for the NAS study and provide her comments to the Director. ROI 1 at 1446. On May 17, 2018, Associate Director emailed Complainant requesting that she submit her comments on the revised draft NAS statement by May 25, 2018. Id. The NAS study included a GOMR site visit organized by Complainant without notifying the Regional Director. This ultimately resulted in the study’s pause, negative press coverage, and an Inspector General audit. Prior to April 2018, Complainant approved expanding the scope of a Booz Allen Hamilton (BAH) project to review corrective action plans at a cost of $18,000 without notifying the Director. ROI 1 at 205 and 210. On April 28, 2018, the Director emailed Complainant regarding information on the results of a survey conducted by BAH. ROI 1 at 1472. Complainant believed that management had attempted to undermine her work on the NAS study, and that they accused her of attempting to undermine BSEE by approving the expanded scope in the BAH project. Complainant included Supervisor among those to be blamed for the fall out, stating that “[I]t’s a Sue and Doug thing.” ROI 1 at 182. She described her unilateral expansion of the BAH project as “[Complainant] and [Supervisor] messing in their [GOMR’s] sandbox.” ROI 1 at 211. On January 22, 2018, the Director sent Complainant an email summarizing their January 20, 2018 meeting. ROI 1 at 186. Complainant responded to the Director email, stating that his summary was “technically correct.” Id. 4 2021004151 On April 5, 2019, Complainant, the Director, and Associate Director had a meeting with the Office of the Solicitor, including a named Director (Director 1) and another named official (Official 2) to discuss the denial of a White House detail for an employee (Employee 1). ROI 1 at 1518. On April 9, 2019, Director 1 declined to have a second meeting to discuss the denial of the White House detail. ROI 1 at 1517. Complainant took issue with an email from Director 1 detailing the reasons why a second meeting was not necessary. According to Complainant, the email mocked and ridiculed her but she did not explain how. In March or April 2019, the Director and Supervisor had a conversation about Senior Technical Advisor’s selection as Training Branch Lead. ROI 1 at 266. On June 27, 2019, Complainant requested to be placed into the Acting OORP Deputy Chief position after the conclusion of her Acting OORP Chief detail. ROI 1 at 199. On January 8, 2020, the Director discussed the 2019 National Inspectors Meeting with a third named official (Official 3), Complainant’s subordinate. Supplemental ROI (ROI 2) at 53-4. According to Complainant, on one occasion, the Director “repeatedly demeaned and undermined” her by directing several questions regarding the 2019 National Inspectors Meeting to Official 3 after Complainant made introductory remarks. Complainant asserted that the Director’s discussion with Official 3 was “basically a dismissal of me in my capacity as the Branch Chief for Offshore Safety Improvement.” Id. at 54. Between February 22 and March 7, 2019, a fourth named official (Official 4) emailed undisclosed participants, as well as BSEE employees and members of Congress and the media, regarding alleged misconduct by BSEE employees. ROI 1 at 1359-62. Between March 25 and March 27, 2019, Official 4 emailed reporters at the Project on Government Oversight alleging misconduct by BSEE employees. ROI 1 at 1352-58 On April 11, 2019, Official 4 emailed a group of undisclosed participants regarding a proposed class action lawsuit against the Department. ROI 1 at 1336-37. On April 12, 2019, Associate Director emailed Complainant that BSEE was working with the Department on possible options to stop Official 4’s emails. ROI 1 at 1348. On April 12, 2019, and again on April 25, 2019, the Director emailed Complainant requesting the names of current BSEE employees which Complainant referenced as participating in Official 4’s allegations. ROI 1 at 1345. Complainant considered the Director’s email to be abrupt, asserting that the Director was “asking her to identify individuals she believes to be supplying information to Official 4 so that the Director may forward her allegations for investigation.” After not receiving a response, the Director renewed his request on April 25, 2019. Although Complainant previously stated that there were “six or seven employees that we assumed or suspected were involved in this group,” she provided 3 employee names-persons for whom she had “direct knowledge of their behavior or of their contribution to some of these emails[.]” ROI 1 at 284. On June 27, 2019, a fifth named official (Official 5) emailed Complainant requesting additional information regarding the current BSEE employees named by Complainant as co-conspirators in Official 4’s actions. ROI 1 at 1344. 5 2021004151 On March 18, 2020, the Director asked Complainant if the lifting team collaborated on the lifting incident report she submitted for review. ROI 2 at 342. On March 19, 2020, Complainant responded to the Director that she had not circulated the draft lifting incident report prior to her submission. Id. Prior to March 2020, Complainant was not aware of the existence of a 2015 ABS Crane Safety Assessment Report until it was found by a team member. ROI 2 at 108. According to Complainant, the Director excluded her from a June 7, 2019 email to her “contemporaries and direct reports” regarding helicopter cost and utilization reports. Despite not being on this particular email, Complainant was very much involved in the production of these reports, subsequently reviewing and editing a staff member’s suggestions to the report. Complainant asserted that the Director “refused to communicate with Complainant directly and used Associate Director to pressure Complainant” to approve the revised scope of the NAS study. According to Complainant, “They concluded it was more of a communication problem.” ROI 1 at 181. Also, according to Complainant, Associate Director’s correspondence with her simply provided, “The Director would like for you to review and provide comments.” ROI 1 at 1446-47. On April 9, 2020, Petroleum Engineer sent an email stating that he had placed his edits and comments into the document uploaded into DTS (undefined acronym) and included a screenshot. ROI 2 at 344. On May 6, 2020, and again on May 11, 2020, the Director requested that Complainant add a sixth named official (Official 6) as the team lead for the Reduction of Lifting Incidents Steering Committee. ROI 2 at 366-68. On June 29, 2020, the Director emailed Complainant, advising that she be prepared to brief him on the recommendations of the 2015 ABS crane safety assessment. ROI 2 at 381. Complainant’s performance evaluations the entire period were all superior or outstanding, with no negative comments at all concerning her reputation or her level of respect among her colleagues. Her performance evaluation provided an overview of her ability to perform her job, and it was clear Complainant was well-respected and her management of others was successful. According to Complainant, “my staff actively seek out my insights and guidance when preparing a work product or … an initiative.” ROI 1 at 1674. She successfully “sponsored, organized and facilitated the 2019 Inspector Workshop…which was directly impacted by the changes in BSEE leadership, budgeting challenges, the government furlough and personnel changes.” Complainant’s evaluation indicating that this was “viewed to be one of the best ever. Very much a team effort amongst individuals within GOMR and OORP, this 3.5-day event hosted close to 150 inspectors and engineers, provided training and general engagement opportunities and was fun.” ROI 1 at 1677. On August 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 6 2021004151 1. From approximately October 2014 to June 2019 the Agency, by and through the Director and Associate Director, has failed to take any action to stop harassment of Complainant by three named employees, including Official 4; 2. In or around March 2016, the Agency, by and through its alleged discriminating/responsible management official, Regional Director, told a Deputy Director (Deputy Director) that Complainant was removed from a project because she was a woman; 3. In or around April and May 2016, Complainant attempted to provide the Agency, by and through Senior Technical Advisor with a draft of the Success Path Protocol project, and Senior Technical Advisor threw the document back across the table at Complainant, stating words to the effect of he did not need Complainant’s work as they had Petroleum Engineer’s checklists; 4. In or around May 2016, Senior Technical Advisor undermined Complainant’s role as a team lead to senior BSEE management when he endorsed Petroleum Engineer’s creation and wide distribution of RBI documents that did not follow the assigned format and had not been reviewed by Complainant, who was the team lead; 5. On or about May 22, 2016, Senior Technical Advisor undermined Complainant’s leadership for the second RBI pilot by pushing for the team to spend a night offshore as part of the inspection, then announcing the day before the team was to leave for the offshore facility that he would be returning the same day, resulting in two other team members also requesting to return the same day and declining participation on the second day of the pilot; 6. In or around September 2016, Senior Technical Advisor and Petroleum Engineer, GS- 14 Manager, Office of Safety Management (OSM), made comments during a GAO audit of the program that degraded and cast doubt on Complainant’s leadership in the Risk-Based Inspection (hereinafter “RBI”) program activities; 7. In or around November 2016, Senior Technical Advisor and Petroleum Engineer falsely claimed that Chevron was frustrated with BSEE’s effort, led by Complainant, during the RBI pilot; 8. In or around November 2016, the Agency, by and through Petroleum Engineer, criticized Complainant for failing to provide Shell with a report of the second pilot audit, even though no report was expected or requested; 9. In or around January 2017, Regional Director declined, without explanation, Complainant’s recommendation as team lead that a named individual (Argonne National Laboratory/Dept of Energy) be a team member for the third RBI inspection 7 2021004151 due to her extensive industry experience and because she was involved in developing the new inspection guidelines BSEE was developing; 10. On or around February 1-3, 2017, Senior Technical Advisor and Petroleum Engineer excluded and prevented Complainant from engaging in the third RBI, which she was supposed to be leading; 11. On or about February 6, 2017, Senior Technical Advisor removed Complainant from both leading and participating in the third RBI by removing her name from further internal correspondence; 12. On or about March 22, 2017, Complainant learned that the Agency, by and through Senior Technical Advisor and Petroleum Engineer, GOMR, excluded qualified GOMR employees from participating in the second pilot RBI in an effort to make Complainant fail in the performance of her duties; 13. On or around May 19, 2017, Regional Director denied having authority to remove Complainant from a project, although he had in fact removed her from the third RBI; 14. On or about July 22, 2017, Regional Director required Complainant to draft the final report for the third RBI, even though he had previously removed Complainant from participation; 15. From approximately December 2017 to present, Regional Director and the Director have attempted to undermine Complainant’s work on the National Academy of Science (hereinafter “NAS”) study on BSEE’s Inspection Program; 16. On various dates from January 2018 to present, the Director has demeaned, mocked, and sought to discredit Complainant during meetings; 17. On or about January 22, 2018, the Director sent Complainant an email incorrectly summarizing their January 20, 2018 conversation and falsely claiming that Complainant agreed that she failed to do her job; 18. From February 2018 until January 24, 2019, Associate Director failed to file an SF-50 reflecting Complainant’s role of Deputy Chief for OORP; 19. In or around April 2018, Regional Director and the Director accused Complainant of attempting to undermine BSEE when she approved the expanded scope of a BoozAllen Hamilton project; 20. On or about May 16, 2018, the Director refused to communicate directly with Complainant, and instead used Associate Director, Associate Director for 8 2021004151 Administration, to pressure Complainant to approve the revised scope of the National Academy of Science study on BSEE’s Inspection Program; 21. In or around July 2018, a named employee of Office of Public Affairs, informed Complainant that his supervisor, Office of Public Affairs, had been yelled at by his identified manager, for speaking to Complainant; 22. From approximately February 11, 2019 until July 1, 2019, Regional Director failed to review and respond to multiple requests for status updates on Complainant’s draft of the National Aviation Program Manual Chapter; 23. On or about March 18, 2019, a named Human Resources employee provided Complainant with false information, intended to undermine Complainant; 24. In or around March or April 2019, the Agency, by and through the Director, expressed anger and displeasure to Supervisor about Complainant’s EEO complaint; 25. On or about April 10, 2019, Director 1 mocked and ridiculed Complainant when she attempted to assist her supervisee with obtaining a prestigious detail; 26. On or about April 10, 2019, the Director and Associate Director abruptly terminated Complainant’s detail to the position of Acting Deputy Chief of Office of Offshore Regulatory Programs (“OORP”) without explanation, and backdated the end of the detail to February 25, 2019, although Complainant performed the duties of that position through April 10, 2019; 27. In or around April 25, 2019, the Director sent Complainant an abrupt email asking her to identify the individuals behind the allegations made by Official 4, although emails show that he already received and was aware of this information; 28. On or about April 25, 2019, and continuing to present, Regional Director and Petroleum Engineer have harassed Complainant by attempting to bypass and circumvent working with her; 29. On or about June 7, 2019, the Director undermined Complainant by excluding her on an email sent to her contemporaries and her direct reports; 30. On or about June 27, 2019, the Director denied the request of the Acting Chief of OORP to have Complainant backfilled into the Deputy position; 31. On or about June 27, 2019, the named Human Resources employee asked for information from Complainant in a manner meant to demean and mock Complainant; 9 2021004151 32. On or about July 10, 2019, Petroleum Engineer sent to Complainant a condescending email as she attempted to follow the National Procedure; 33. On or about January 8, 2020, Senior Technical Advisor told colleagues in a joking but demeaning manner that the reason BSEE promoted a named employee into the District Manager’s position in Houma was because she could laugh at all of their jokes; 34. On or about January 8, 2020, the Director repeatedly demeaned and undermined Complainant during the 2019 National Inspector’s Meeting; 35. On multiple dates in March through May 2020, the Director verbally berated Complainant, implying that she was not doing her job to improve safety performance, and stating that he had to perform basic tasks for her; 36. On multiple dates in March and April 2020, the Director demeaned Complainant by suggesting that she should have her work reviewed by coworkers and subordinates on tasks where such review is not customary and where the same requirements were not suggested for her coworkers; 37. On multiple dates during the period of April through July 2020, the Director undermined Complainant by questioning her decision making and micromanaging her work; 38. On or about April 10, 2020, the Director and Petroleum Engineer attended a meeting to discuss Complainant’s work product, at which Petroleum Engineer was unprepared having not reviewed the revised product, indicating that Complainant’s work was unimportant; and 39. On or about June 29 to July 2, 2020, the Director unreasonably questioned and demeaned Complainant in a series of emails related to the discovery of a 2015 report. The Agency accepted the complaint for investigation. 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 an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. At a November 17, 2020 Initial Conference, the AJ assigned to the case granted Complainant’s July 10, 2020 motion to amend and remanded the case for further investigation of the amended claims. The parties participated in a Pre-Hearing Conference (Conference) on February 18, 2021. Pursuant to the requirements of the AJ’s Order following the Conference (Order), on March 29, 2021, the Agency filed its motion for summary judgment (Motion). On April 13, 2021, Complainant filed her response (Response). On April 20, 2021, the Agency filed its reply (Reply). 10 2021004151 The AJ noted that the Agency’s Motion identified 47 undisputed facts and the grounds on which the case should be decided without a hearing. After reviewing the Agency’s statement of facts and documentary sources, the AJ adopted them, finding that they were accurate and supported by the record. The AJ also noted that Complainant disputed 7 of the Agency’s stated facts. However, the AJ determined that Complainant presented no documentation or evidence in support of those facts other than her own conclusory statements in the record. Therefore, the AJ found that there were no disputed material facts. The AJ also reviewed Complainant’s 43 stated undisputed facts and their documentary sources. The AJ observed that in Complainant’s statement, she provided no documentation or evidence in support of most of her “facts” other than her own conclusory, self-serving statements in the record. According to the AJ, many of the facts that Complainant presented were irrelevant or immaterial; and many of them were not really facts, but mischaracterizations of the record and/or argument. Accordingly, the AJ did not adopt any of them. The AJ determined that Complainant failed to demonstrate a disputed issue of material fact as to whether she was subjected to harassment as part of a hostile work environment based on sex or reprisal. According to the AJ, what Complainant presented were many overlapping and interrelated examples, over a period of 6 years, of common workplace tensions and office disagreements; and she failed to show that the complained of conduct was based on her sex and prior protected activity. See AJ’s Decision at 5. According to the AJ, Complainant alleged specific incidents that can only be described as ordinary workplace tribulations, scattered over the course of over 6 years, asserting that those incidents were based on her sex and prior EEO activity. However, the AJ observed that the allegations that form the basis of Complainant’s case fell far short of establishing a prima facie case of hostile work environment harassment. The AJ determined that Complainant failed to establish that she was subjected to unwelcome verbal or physical conduct involving her protected classes, much less that the conduct in question affected a condition of her employment or unreasonably interfered with her work environment. The AJ asserted that as a high-level supervisor, Complainant was apparently unhappy about the tense relationship and accompanying power dynamics between BSEE headquarters and its GOMR office. The AJ also determined that Complainant clearly wished for more independence in her functions as a manager, equating the participation and oversight of supervisors such as the Director as “undermining” or “micromanaging.” However, observed the AJ, Complainant presented no evidence of harassment beyond speculation, based in large part on her interpretation of the tone of various meetings and email exchanges, and failed to link the alleged conduct to her sex or prior protected activity. See AJ’s Decision at 15. The AJ issued a decision without a hearing in favor of the Agency on June 1, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. 11 2021004151 CONTENTIONS ON APPEAL ANALYSIS AND FINDINGS 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. (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). In order 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. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the EEO investigation and discovery before the AJ, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ 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 implementing the AJ’s 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. 12 2021004151 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). 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. 13 2021004151 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, 2022 Date