[Redacted], Roxanna B., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020000405 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxanna B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020000405 Hearing No. 410-2018-00307X Agency No. IRS-17-0564-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 17, 2019, 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. ISSUE PRESENTED The issue is whether substantial evidence supports the Administrative Judge’s decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on sex or reprisal. 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. 2020000405 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency’s Wage and Investment Service Center in Chamblee, Georgia. Complainant stated that beginning on or about December 8, 2016, she requested to work overtime from her then first-line supervisor (S1). On January 9, 2017, Complainant transferred to a different first-line supervisor (S2). Complainant stated that she also requested overtime work from S2, and that all of her requests were denied. Report of Investigation (ROI) at 194, 580. Complainant stated that in March 2017, S2 and a Team Lead (TL) began to review more of her phone reviews, as compared to her coworkers. Specifically, Complainant alleged that TL conducted ten phone reviews in March 2017 alone. Complainant stated that, on September 8, 2017, she requested copies of the reviews, and S2 responded that they were in Complainant’s personnel file and that S2 did not have access to them. ROI at 189-90. On April 12, 2017, S2 issued Complainant a memorandum regarding her declining performance. S2 noted that Complainant failed in the elements of Customer Accuracy and Technical Knowledge/Research. S1 also informed Complainant that, based on this rating, her Within Grade Increase (WGI) was denied. With the memo, Complainant was issued an Action Plan to address her performance issues. ROI at 609-12. On May 26, 2017, S2 issued Complainant a memorandum on her Improved Performance. S2 noted that Complainant now rated as “Meets” for Customer Accuracy and Technical Knowledge/Research. S2 also stated that Complainant’s previously denied WGI was allowed due to the improved performance. ROI at 631. Complainant stated that on September 6, 2017, she informed her second-line supervisor, the Department Manager (DM), that her WGI was not approved, and that DM blamed Labor Relations. ROI at 197. On November 16, 2017, S2 submitted a form to approve Complainant’s WGI, with an effective date of July 9, 2017. ROI at 644. EEO Complaint On September 27, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on sex (lesbian, gay, bisexual, transgender (LGBT))2 when: 2 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 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). 2020000405 3 1. management conducted more reviews of Complainant’s work than other employees’ work, refused to provide copies of the reviews, and gave Complainant an “unwarranted” low rating in May 2017; 2. Complainant was prohibited from working overtime from December 12, 2016, through May 19, 2017; and 3. Complainant’s pay increase was agreed upon on July 6, 2017, but not approved. Complainant amended her complaint to allege that she was retaliated against for filing the instant EEO complaint when: 4. Complainant became aware that management was freezing her paygrade. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on March 18-20, 2019, and April 4, 2019, and issued a decision on August 28, 2019. As an initial matter, the AJ found that S2 and DM credibly testified that they learned that Complainant is a transgender female in May 2017, and that Complainant’s coworkers learned, in September 2017, when Complainant announced it during a staff meeting. The AJ noted that this was consistent with Complainant’s testimony about when she notified others about being transgender. The AJ stated that S1 credibly testified that he did not learn that Complainant is a transgender female until he was contacted in November 2017, for the instant EEO complaint. The AJ also found that Complainant and others testified that her appearance was not stereotypically female because she wore “unisex” clothing and shoes. The AJ found that Complainant did not establish a prima facie case of sex discrimination for claims 1-3 because the management officials were not aware of Complainant’s transgender status prior to taking these actions. The AJ also found that Complainant did not establish a prima facie case of sex discrimination because the named comparators did not have the same or similar performance ratings as Complainant, and that the evidence showed that they performed better than Complainant. The AJ assumed that, even if Complainant could establish a prima facie case of sex discrimination, the Agency provided legitimate, nondiscriminatory reasons for its actions. The AJ found that S2 credibly testified that employees who had performance issues received more quality reviews; and that the evidence and testimony showed that Complainant’s performance ratings were based on her performance at the time. The AJ also determined that S1 and S2 credibly testified that employees who were poorly performing were denied overtime, which was consistent with the collective bargaining agreement. 2020000405 4 The AJ also found that the denial of Complainant’s non-competitive promotion was consistent with regulation 5 C.F.R. § 335.104, that Complainant’s performance was unacceptable prior to May 26, 2017, and that she was not eligible for a promotion prior to this time.3 The AJ then found that Complainant failed to show that the Agency’s reasons were pretexts for discrimination. The AJ noted that during her testimony, Complainant did not dispute that she committed the errors, but only challenged the number of reviews that she received. Although Complainant alleged that management officials purposefully selected incorrect cases for review, the AJ found that they credibly and consistently testified that they did not purposefully select cases and that the cases were selected randomly. The AJ also noted that the management officials credibly testified that due to the volume of their work demands, their focus was on the work and not on attempting to sabotage Complainant for any reason, let alone because she is a transgender individual. The AJ concluded that Complainant had not shown that the Agency’s reasons were pretexts for discrimination. Regarding Complainant’s non-sexual harassment allegation, the AJ found that although Complainant can establish membership in a protected class as a transgender female, she cannot show that she was subjected to unwelcome verbal or physical conduct or that the Agency’s actions were due to her membership in a protected group. The AJ determined that claims 1-3 did not rise to the level of the types of offensive jokes, insults, ridicule, or other verbal conduct that would constitute unwelcome verbal conduct. Rather, they were management’s assessments and attempts to improve Complainant’s performance. The AJ determined that, at most, the incidents were disagreements between Complainant and the management officials concerning her performance, which did not rise to the level of harassment. The AJ also found that the management officials did not engage in the actions because Complainant is a transgender female. The AJ further found that the incidents were not so severe or pervasive that a reasonable person would find the conduct to be hostile or abusive. The AJ noted that there was evidence of negative comments about members of the LGBT community within Complainant’s division. However, the AJ found that the comments were not attributable to the management officials in this case, and that there was no indication that these comments were brought to the attention of any Agency management official. The AJ also found that the comments were not directed toward Complainant, or that she observed these comments when they were made. The AJ found that Complainant established a prima facie case of retaliation based on the instant EEO complaint, and that there was a temporal proximity to the adverse action when Complainant was informed in May 2017 that she was entitled to a promotion but did not receive it until November 2017. However, the AJ found that the Agency had a legitimate reason for the pay “freeze.” The AJ found that S2 credibly testified that she submitted the paperwork for Complainant’s promotion shortly after May 26, 2017, after Complainant improved her performance. 3 The AJ noted that while the documents stated “WGI,” the correct terminology was promotion. 2020000405 5 The Agency’s Human Resources (HR) determined that the effective date would be July 9, 2017, to which Complainant agreed. The AJ noted that S2 submitted the paperwork several times, and that personnel changes in HR delayed the processing of the paperwork until November 2017. The AJ stated that the evidence showed that when Complainant received her promotion, she received backpay retroactive to the date of the promotion. The AJ found that Complainant did not provide evidence that would establish that the Agency’s legitimate, nondiscriminatory reasons were pretexts for discrimination. 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. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. On November 20, 2019, Complainant submitted 17 documents, and on November 25, 2019, Complainant filed an additional statement in support of her appeal. On October 16, 2020, Complainant uploaded a document related to case reviews conducted in September 2020. On November 4, 2020, Complainant uploaded a copy of the Agency’s acceptance notice of another EEO complaint. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant alleges that the AJ’s decision included “falsehoods.” Complainant states that the AJ noted that Complainant began her transition in September 2015, but that she actually began in 2003. Complainant also states that the AJ identified the date of an email, despite a witness (W1) lying to the EEO Investigator and admitting that he altered the date. Complainant asserts that W1 “falsely added” the time zone stamp. Complainant also alleges that the AJ disregarded her basis of her sexual orientation. Complainant argues that the AJ ignored the testimony from her witnesses yet found that management officials provided credible statements. Complainant states that there is evidence “against management’s mantra of lack of awareness” that she is a transgender female because she told S2 and DM in May 2017. Complainant asserts that the AJ disregarded her measurable harms when she “glibly accepted as gospel the false claim” that DM could not make Complainant’s promotion retroactive to March or May of 2017. Complainant asserts that her wages were frozen until January 2018, and that DM refused to electronically sign-off on Complainant’s pay grade increase. Complainant states that while the AJ found that she did not challenge the reviews, Complainant could not do so due to the numerosity of the reviews. Complainant asserts that it would have been “too burdensome” to rebut the errors. Complainant asserts that the AJ did not allow two of her exhibits due to “bias and hate.” Complainant’s first exhibit contained pictures of various stick figures that “demonstrate the lack of equity, diversion [sic], and inclusion pictorially.” 2020000405 6 Complainant’s other exhibit was a series of icons and emojis, which Complainant states illustrate that she was singled out and prevented from progressing to the GS-6 level because she was the only transgender woman. Complainant argues that the AJ contradicted herself in the decision. For example, the AJ stated that incidents 1-3 occurred between September 30, 2016, and April 12, 2017, but that claim 3 alleged that Complainant’s pay increase was agreed upon in July 2017. In addition, the AJ found that Complainant received her pay increase in November 2017, but Complainant argues that she repeatedly informed the AJ that she did not receive it until January 2018. Complainant asserts that it was not true that the Human Capital office was the reason for the delay. Complainant adds that it was misleading to state that she was “agreeable to this July 2017 date.” Complainant also notes that the AJ identified the start date of when she was denied overtime as both December 12, 2016, and December 23, 2016. Complainant argues that the AJ was “intentionally careless and inattentive to facts,” such as identifying DM as second-line supervisor for all times relevant to this complaint, and that another manager was Complainant’s second-line supervisor from March 2016 through December 2016. Complainant states that while the oversight seems “innocuous,” it was the “same disregard for the truth” that led the AJ to conclude that Complainant received her promotion in November 2017. Complainant states that a witness (W2) stated that DM said, “Being transgender is a choice,” but that the AJ did not allow W2 to testify. Complainant also argues that there were other employees who were discriminated against based on their sexual orientation. For example, Complainant identified another employee who supported her discrimination claim, and alleged that DM denied his conversion from seasonal to permanent employment. Agency’s Contentions The Agency argues that there was no evidence in the record supporting Complainant’s claims of discrimination and that all of her enumerations of error are without merit. The Agency asserts that Complainant’s appeal brief consists largely of lengthy disagreements with numerous factual findings, without a cite to any instance where the AJ’s factual findings were not based on substantial evidence or to any evidence in the record that directly contradicts a finding of fact made by the AJ. The Agency also argues that Complainant simply provided homemade “exhibits” with no basis in fact and restated her versions of the various events at issue in the case. The Agency notes that Complainant’s only support for alleged bias on the AJ’s part is the fact that the AJ disagreed with her. The Agency states that while Complainant complained about the AJ “lying” or mischaracterizing witness testimony, she provided no evidence to support these contentions, and she does not cite to any testimony in the record that would contradict any finding of fact made by the AJ or suggest that there was not substantial evidence in the record to support such findings of fact. 2020000405 7 The Agency asserts that Complainant also made "outrageous accusations of misconduct and unethical behavior by the [AJ] during the hearing, including creating 'falsehoods' in the record," but "offer[ed] no evidence whatsoever to support these scurrilous and baseless charges." The Agency notes that Complainant’s brief contains numerous allegations and new “evidence” that is not found anywhere in the record, including several images created by Complainant that purport to show management’s discriminatory treatment of transgender employees. The Agency argues that even if this new evidence were material to the case and could be authenticated, Complainant has given no reason or legal authority as to why it should have been included in the record. The Agency asserts that there is no basis for it to be considered here and should be ignored. The Agency requests that the Commission affirm the AJ’s decision and the Agency’s final order finding no discrimination. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015). In this case, the AJ found that management officials provided consistent and credible testimony, and while Complainant challenged their credibility, she did not provide any evidence to prove that their testimony should not be credited. ANALYSIS AND FINDINGS Complainant argued that there is evidence “against management’s mantra of lack of awareness” that she is a transgender female because she told DM in May 2017. However, DM testified that she learned that Complainant was transgender when S2 informed her of Complainant’s email and message. Hearing Transcript (HT) at 695. S2 testified that on May 15, 2017, as she was reading an email from Complainant alleging discrimination, S2 received an instant message from Complainant stating that the discrimination was because she was transgender. S2 testified that she forwarded the email to DM and informed her of Complainant’s instant message. HT at 467- 68. We find that the testimonies from S2 and DM are consistent with Complainant’s statement that they first learned of her transgender status in May 2017. 2020000405 8 In addition, there is no evidence that DM refused to electronically sign-off on Complainant’s pay grade increase or that DM made a “false claim” that she could not make Complainant’s promotion retroactive to March or May of 2017. We find that Complainant did not provide any documents or other objective evidence that so contradicts S2’s or DM’s testimony, nor shown that their testimonies so lack in credibility, that a reasonable fact finder would not credit them. Complainant also alleged that W1 lied to the EEO Investigator and admitted to altering the date on an email. W1 testified that in August 2017, one of Complainant’s coworkers (CW) informed him that Complainant was filing complaints against W1, and that Complainant had asked CW to lie. HT at 214-15. A review of the email shows that on August 12, 2017, Complainant asked CW to copy and send provided text to the EEO Counselor in support of Complainant’s EEO complaint. On August 13, 2017, CW replied that she was unable to do so because she did not believe that Complainant was being discriminated against based on her sexual orientation or that management officials even knew of her transgender status. The email shows that CW forwarded the email to W1 at 11:01 a.m. on November 28, 2017, and that W1 forwarded the email to the EEO Investigator on 10:05 a.m. on November 28, 2017. ROI at 909-10. During the hearing, Complainant asked if W1 manually changed the date to November 28, 2017, which he denied. HT at 168. While we note that it is not clear why the email shows that W1 forwarded the email to the EEO Investigator on 10:05 a.m. on November 28, 2017, which was prior to when CW sent it to W1 at 11:01 a.m., we find that Complainant did not provide any evidence showing that W1 manually changed the date and “falsely added” the time zone on the email. As such, we accept the AJ’s credibility determinations. Complainant’s Appeal Documents After Complainant filed her appeal and statement in support of her appeal, she submitted multiple additional documents. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Here, Complainant submitted 17 documents on November 20, 2019, without explanation, and many appear to be already part of the record, such as the hearing transcripts. On November 25, 2019, Complainant filed an additional statement. We note that the additional documents and statement were submitted past Complainant’s 30-day deadline; as such, we will not consider them. In addition, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD- 110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that the new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. For the sake of argument, we find that even if the additional documents and statement are considered on appeal, the evidence does not alter our final disposition that Complainant failed to prove that she was discriminated against or harassed. 2020000405 9 On October 16, 2020, Complainant submitted a document related to case reviews conducted in September 2020, and on November 4, 2020, she provided a copy of the Agency’s acceptance notice of another EEO complaint. We note that the Agency’s acceptance notice shows that the issues in Complainant’s October 16, 2020, document were accepted for investigation; as such, we will not address the claims included in this separate EEO complaint. AJ Conduct On appeal, Complainant argued that the AJ the was biased against her. Complainant must make a substantial showing of personal bias by the AJ in order to prevail on her contention that the AJ displayed bias. Such bias must be shown to have prejudiced her in this matter. Complainant must establish that the alleged bias demonstrated, so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that she did not receive a fair and impartial hearing. See Smith v. Dep’t of the Army, EEOC Appeal No. 01880866, (May 11, 1988) (citing Roberts v. Morton, 549 F.2d 158 (10th Cir), cert. denied; Roberts v. Andrus, 434 U.S. 834 (1977)). In this case, there is no evidence that the AJ was biased in favor of the Agency such that Complainant did not receive a fair evaluation of her case. We note that under 29 C.F.R. § 1614.109(e), Administrative Judges are granted broad discretion in the conduct of administrative hearings, including the authority to limit the number of witnesses where testimony would be repetitious and exclude irrelevant or repetitious evidence. On or about February 27, 2019, Complainant filed her Pre-Hearing Report and stated that W2 would testify that “‘[t]here is no set amount of time for the transition, nor is there a one-size-fits- all approach.’ Gender transition is necessary for people who discover that they were born in a sex that isn’t aligned with their gender.” On March 11, 2019, the AJ issued a Scheduling Order and Order to Produce, in which she listed the witnesses scheduled to testify, and did not include W2. Although Complainant argued that the AJ erred in not allowing W2 to testify, we find that the AJ did not abuse her discretion because W2’s testimony would not be directly related to the claims of the Agency’s allegedly discriminatory actions in this complaint. Regarding the exhibits that were not included, we find that they appear to be Complainant’s arguments, presented visually using icons and emojis, and that the AJ did not abuse her discretion when she excluded this evidence. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. 2020000405 10 Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, and in reprisal for protected EEO activity, we find that substantial evidence in the record supports the AJ’s determination that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, S2 testified that typically, a team lead and a manager each conduct one review per employee; however, if there is a 715 error (harms a taxpayer), an additional review is conducted. S2 stated that in the months that Complainant committed a 715 error, she was subjected to another review. For example, S2 testified that the review conducted on March 27, 2017, revealed several errors, including a 715 error. HT at 438-39, 448. TL denied conducting ten reviews of Complainant’s work in March 2017, and he stated that the maximum number of reviews he conducted on an employee is three in a month. ROI at 725. TL testified that when he reviewed Complainant’s work, he found it to be “so-so” because she would question procedures and misinterpret the manual, and when he tried to correct Complainant, she would not accept his explanations. HT at 554. S2 stated that the reviews were shared with Complainant to make copies, but Complainant stated that she did not need a copy. ROI at 582. S2 testified that she placed Complainant on a performance action plan to improve her performance in the two areas that she was failing. HT at 456. Regarding claim 2, S1 testified that he denied Complainant’s request for overtime in December 2016 because her Customer Accuracy rate was “not compatible” with the instructions regarding eligibility for overtime. HT at 814. S2 testified that she denied Complainant's overtime request because she was on a performance action plan, and that it was a general policy that no employee on a performance action plan was allowed to work overtime. S2 stated that after Complainant completed her performance action plan, she was eligible for overtime. HT at 471-72, 512. For claims 3 and 4, S2 testified that she relied on the Agency’s policy that an employee may not receive a career ladder promotion if she has a rating below fully successful in a critical element. HT at 463. S2 testified that the performance action plan ended when Complainant’s performance improved, and S2 then decided to approve Complainant’s promotion. S2 added that DM also approved the decision for Complainant’s promotion. HT at 465-66. 2020000405 11 S2 testified that she had to keep resubmitting the information for Complainant’s promotion. S2 stated that she had to redo Complainant’s performance appraisal to show that she was performing at a fully successful level. HT at 472-74. S2 testified that they tried to get Complainant’s promotion effective in May 2017, but that they had “issues with HR,” and that it had something to do with 60 days after the first pay period. HT at 520-21. DM testified that an acting Department Manager signed the documents for Complainant’s promotion because DM was on vacation at the time. DM testified that S2 sent the paperwork to Labor Relations and “somehow the paperwork did not get processed,” and S2 had to resend the paperwork. HT at 705-07. We also find that substantial evidence in the record supports the AJ’s finding that Complainant did not establish pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant repeatedly argued that management officials lied; however, Complainant only made bare assertions and did not provide evidence to show that any of the management officials lied. Complainant asserted that the AJ was “intentionally careless and inattentive to facts,” and that her decision included “falsehoods.” Although we note that the AJ’s decision contains minor errors or inconsistencies, we find that there is no evidence that they were intentional, nor do they undermine the fact that the record contains substantial evidence to support the AJ’s factual findings regarding Complainant’s claims. We find that the record contains supporting documents with detailed information showing that Complainant had performance issues through early 2017. For example, Complainant’s Cumulative Evaluative Review Feedback Reports show that Complainant had a 28.6% Customer Accuracy rate from March 7, 2016, through September 30, 2016, and a 52.5% Customer Accuracy rate from May 1, 2016, through April 30, 2017. ROI at 613-30. Further, we note that Complainant did not assert that she did not make the errors that she was charged with making, and she testified that she was given an opportunity to rebut the errors but that it would have been too “onerous” to challenge them. HT at 269. Although Complainant asserted that DM refused to sign off on her promotion, which was delayed to January 2018, we find that there is no evidence to support her assertion. The record contains an email from Complainant to a Management and Program Analyst (MPA), in which Complainant noted that on November 3, 2017, MPA informed her that he was inputting her wage increase the following week. ROI at 390. On November 16, 2017, Complainant received an automated message from “HR_Connect” noting that her promotion was authorized by her management officials and submitted to HR for processing. ROI at 380. 2020000405 12 On January 9, 2018, Complainant contacted HR officials, and she was informed that there was more than one action in the system, that the “PAR” was initiated late, and that they were working to complete the actions and making corrections. ROI at 395-96. Although there was a delay in the processing of Complainant’s promotion, we find that Complainant did not provide evidence showing that DM caused the delay. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her sex, or in retaliation for her protected EEO activity, when it denied her overtime, subjected her to additional reviews of her work and an “unwarranted” performance rating, and delayed her promotion. Harassment As discussed above, we find that Complainant did not establish a case of discrimination on any of her alleged bases. Further, we conclude that a finding of discriminatory harassment is precluded based on our determination that Complainant did not establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). To the extent that there may have been anti- LGBT comments made in the workplace, we find that substantial evidence supports the AJ's determination that the comments were not directed toward Complainant nor that she observed the comments when they were made. Complainant did not provide any evidence showing that the Agency subjected her to any unwelcome conduct that was based on her sexual orientation or because she is a transgender female. Accordingly, we find that Complainant did not show that the Agency subjected her to harassment based on her sex or in reprisal for protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on sex or in reprisal for protected EEO activity. 2020000405 13 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). 2020000405 14 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 June 7, 2021 Date