[Redacted], Shanta S., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Office of Inspector General), Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020003787 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanta S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Office of Inspector General), Agency. Appeal No. 2020003787 Hearing No. 461-2019-00049X Agency No. DOT2018-27854-OIG-03 DECISION On April 22, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 2, 2020, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission MODIFIES the Agency’s final order. ISSUES PRESENTED The issues presented on appeal are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly dismissed three claims on procedural grounds; (2) whether the AJ properly issued a decision without a hearing; and (3) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on sex, age, and/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. 2020003787 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-1811 Special Agent/Criminal Investigator at the Agency’s Region 4, New Orleans, Louisiana Port of Duty facility. In June 2016, Complainant began working for the Agency as GS-1811-11 Special Agent. Complainant was promoted to GS-12 in February 2017, and to GS-13 in February 2018. Until his October 2017 retirement, the Assistant Special Agent in Charge (ASAC) was Complainant’s first-line supervisor (S1A), and, after S1A’s retirement, a new ASAC became Complainant’s first-line supervisor (S1B). The Special Agent in Charge (SAC) was Complainant’s second-line supervisor (S2A) until June 2018, when a different SAC became her second-line supervisor (S2B). At all times relevant to Complainant’s EEO complaint, the Deputy Assistant Inspector General for Investigations was her third-line supervisor (S3) and the Principal Assistant Inspector General for Investigations was her fourth-line supervisor (S4). Complainant was born in February 1976. Complainant engaged in protected EEO activity when she contacted an EEO Counselor in 2017 and again on February 15, 2018, when she contacted an EEO Counselor to initiate the instant EEO complaint. Before she was hired by the Agency, Complainant worked for another federal agency in Florida as a GS-1811-13 Special Agent. According to Complainant, there was an understanding when she was hired by the Agency that she would be considered for any openings in Sunrise, Florida, near Complainant’s home, or in her second-choice location, Atlanta, Georgia. Complainant averred that she was not provided with any relocation incentives or paid trips to New Orleans to look for housing. Complainant stated that S2A told her that relocation incentives were never allowed by the Agency, which she later learned was not true. According to S2A, the vacancy for which Complainant applied stated that relocation expenses would not be reimbursed. S3 added that it is uncommon to offer relocation expenses for an external vacancy announcement like the one in New Orleans to which Complainant applied. S2A stated that she approved three days of administrative leave for Complainant to move to New Orleans. Complainant averred that, although she was hired by the Agency at the GS-11 level, she was told that she would be quickly promoted. Complainant alleged that S2A delayed her promotions and discouraged S1A and S1B from helping Complainant try to find positions in Florida or Atlanta. According to Complainant, she would not have accepted the position at the GS-11 level and paid for her own moving expenses if she had known that she would not be able to return to Florida. Complainant alleged that while she was denied relocation incentives and hired at the GS-11 level, despite her experience, younger male employees were treated more favorably. According to Complainant, younger male employees with less, or without any, criminal justice experience were hired at the GS-12 level and/or were promoted over Complainant. These individuals were also given preferential treatment during relocation. 2020003787 3 Specifically, Complainant averred that the male without law enforcement experience did not have the required experience for the GS-1811-12 Special Agent position to which he was transferred from an Auditor position with the Agency. In October 2017, Complainant applied for a GS-14 ASAC position in Atlanta, advertised under vacancy announcement number JRI-4-2018-0001. On December 12, 2017, Complainant interviewed for the position. According to Complainant, S2A required her to report to the Atlanta Field Office the evening before her interview for the ASAC position to conduct her mid-year evaluation. Complainant stated that she had been driving that day for eight hours to get to Atlanta, that she had not yet checked into her hotel, and that S2A made her wait in the office for two hours before starting the mid-year evaluation. According to Complainant, she was at the office with S2A so late that the lights went out, and the hotel where she was planning to stay gave her room away. Complainant alleged that S2A’s conduct placed her at a distinct disadvantage for the interview the next day. Complainant averred that flying would have been impractical because, after her interview, she needed to head to Oxford, Mississippi to participate in grand jury meetings later that day. According to Complainant, the closest airport for Oxford with government rates is in Tennessee, so she would not have been able to meet with the grand jury if she had flown to Atlanta for the interview. S2A averred that, because Complainant was going to be in Atlanta for the interview, she told her that she wanted to conduct her mid-point review and tell Complainant that she had decided to promote her to GS-13. According to S2A, Complainant could have flown to Atlanta for the interview instead of driving, but Complainant said that she preferred to drive. S2A acknowledged that the mid-point review was delayed, but stated that when she asked Complainant if she minded waiting, Complainant responded that it was fine. S2A agreed that the lights did turn off while she was conducting Complainant’s mid-point review, but she denied that it was intentional. S2A explained that she was unaware the building lights shut off at a certain time. According to the record, S2A was based in Sunrise, Florida. S2A stated that she was one of the panelists for the first round of interviews for the Atlanta ASAC position and that the panel interviewed nine candidates. The other panelists were S2B, a GS-14 Desk Officer (P1), and a representative from the Agency’s Office of General Counsel (OGC). S2A averred that the panel recommended two candidates for second-round interviews, which were conducted by S3. S2A indicated that the panel referred the two candidates with the highest interview scores to S3. Complainant was not offered a second interview for the Atlanta ASAC position. According to S2A, she did not specifically remember Complainant’s interview, but Complainant did not rank high enough compared to the other candidates to be referred for another interview. Complainant characterized her own interview performance as “average.” S3 averred that he was the selecting official for the Atlanta ASAC position. According to S3, he interviewed the two candidates who were recommended by the panel before choosing the selectee (C1), who had worked for the Agency as a Special Agent since June 2010. According to the record, the other candidate chosen for a second interview (C2) was a woman who was approximately five years older than Complainant. 2020003787 4 Complainant alleged that she had more than twice the experience as C1, a younger male. According to Complainant, C1 was offered a relocation bonus and afforded six months to relocate to Atlanta from Washington, D.C. S3 stated that C1 had worked for the Agency as a Special Agent longer than Complainant. According to the record, C1’s most recent performance evaluation rating was “Outstanding,” whereas Complainant’s most recent performance evaluation rating was “Fully Successful.” On May 4, 2018, Complainant submitted a Freedom of Information Act (FOIA) request to the Agency. In her FOIA request, Complainant asked for information regarding the Atlanta ASAC position for which she applied (Vacancy Announcement Number JRI-4-2018-0001), as well as another position (Vacancy Announcement Number JRI-4-2016-0004). Complainant also requested “Individual Employee Information,” consisting of the following: 1. Emails and documents to/from [the Deputy Inspector General], [S4], [S3], [S2A], [S1A], [S1B], [an ASAC based in Fort Worth, Texas] and any Human Resources employee involving employee [Complainant] specifically pertaining to hiring, promotion, duty location and pay grade. 2. Copy of [Complainant] human resources file to include hiring, clearance, background and EEO / Hostile Work Environment file. Report of Investigation (ROI) at 355. On May 24, 2018, in responding to the request, an OGC Government Information Specialist based in Washington, D.C. (G1) emailed a number of Complainant’s coworkers and supervisors. The email included a complete, unredacted copy of Complainant’s FOIA request as an attachment, including Complainant’s request for her “EEO/Hostile Work Environment file.” ROI at 354-55, 912-14. G1 also copied the Associate Counsel/FOIA Officer (G2) on the emails. ROI at 913-14. According to G1, it is standard operating procedure to attach a copy of the FOIA request to an email asking relevant individuals to search for responsive records. Complainant averred that when G1 sent the emails to her coworkers and managers, she was attending training with her coworkers. Complainant stated that the annual training provided by OGC included information on how to properly handle FOIA requests and protect personally identifiable information (PII). According to Complainant, several of her coworkers told her about the email received from G1. Complainant stated that, because she relies on her coworkers and management chain to keep her safe while working, she was uncomfortable with the disclosure of her EEO activity. S1B stated that he received an email regarding Complainant’s FOIA request. According to S1B, when Complainant approached him with her concerns about the matter, he recommended that she speak to Human Resources. On February 15, 2018, Complainant contacted an EEO Counselor. On April 21, 2018, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of sex (female), age (y.o.b. 1976), and reprisal for prior protected EEO activity when: 2020003787 5 1. On February 9, 2018, she learned that she was not selected for the ASAC position in Atlanta; 2. From June 2016 through February 3, 2018, she was denied equal pay when management hired her as a GS-11 and hired a less-qualified younger male into the same position as a GS-12, step 8; 3. On or about May 24, 2018, her PII, including information about her EEO activity, was inappropriately disclosed to her colleagues and managers, who did not have a need or right to know the information; 4. On various dates, she was subjected to harassment, including when: a. In or around March 2017, a younger male with less experience and far less training and education was promoted over Complainant and given preferential treatment during relocation; b. On June 14, 2017, management accused her of intentionally or carelessly damaging her government issued laptop(s) and restricted her from communicating with other regions as needed to perform her duties; c. In December 2017, she was required to drive eight hours and wait an additional two hours for her mid-year review to be conducted, during which her supervisor yelled at her regarding the restoration of her GS-13 pay grade; and d. On an unspecified date, management did not provide her with any relocation assistance when she was assigned to New Orleans. 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 EEOC AJ. Complainant timely requested a hearing. The Agency filed a motion to dismiss allegations (2), (3), and (4). The Agency argued that, in October 2017, Complainant had contacted an EEO Counselor regarding allegations (2) and (4), but that she subsequently withdrew the allegations during EEO counseling in December 2017. On December 19, 2017, Complainant emailed the EEO Counselor and withdrew from the process, noting that she had recently spoken with S2A at her mid-year review and wanted to give S2A “one last opportunity to remedy some of the issues and do the right thing.” Agency Motion to Dismiss Exhibit 2. Additionally, the Agency pointed out that the only incident alleged in claim (4) that occurred after Complainant’s October 2017 counselor contact, the mid-year review, was untimely raised during her February 15, 2018 contact to initiate the instant complaint. With respect to allegation (3), the Agency argued that Complainant was claiming a Privacy Act violation in the mishandling of her FOIA request, both matters outside of the Commission’s jurisdiction. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion to dismiss. Over Complainant's objections, the AJ granted the Agency’s November 5, 2019, motion for a decision without a hearing on the remaining claim and issued a decision without a hearing on April 1, 2020. 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. 2020003787 6 The instant appeal followed. Neither Complainant nor the Agency submitted a brief or statement on appeal. STANDARD OF REVIEW 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Summary Judgment We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that there are no genuine issues of material fact and the record is adequately developed. 2020003787 7 Procedural Dismissal - Allegations (2) and (4) The AJ dismissed allegations (2) and (4) for stating the same claim as those previously raised by Complainant in 2017 and for untimely EEO Counselor contact. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Commission has held that 29 C.F.R. § 1614.107(a)(1) applies to allegations withdrawn during the EEO Counseling process. See Williams v. U.S. Postal Serv., EEOC Request No. 05950696 (Dec. 19, 1996). Upon review, we find that allegation (2) and incidents (4)(a) and (4)(d) were properly dismissed on this ground. Although Complainant argued, in her Response to the Agency’s Motion to Dismiss, that she was entitled to equitable estoppel because the EEO Counselor “lulled” the Complainant into thinking she could reinstate her claim at a later date, we are not persuaded. Complainant’s December 2017 email to the EEO Counselor indicated that she was knowingly and willingly withdrawing the matter. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The record reflects that Complainant waited more than 45 days after the alleged events in (4)(b) and (4)(c) to contact an EEO Counselor. She has not provided sufficient justification for extending or tolling the time limit. Therefore, allegations (4)(b) and (4)(c) were properly dismissed pursuant to 29 C.F.R. §1614.107(a)(2). Disclosure of Complainant’s EEO Activity - Allegation (3) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The AJ dismissed allegation (3), Complainant’s claim regarding the mishandling of her FOIA request, for failure to state a claim. The Commission has held that it does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of their FOIA requests under the appropriate FOIA regulations. Gaines v. Dep’t of the Navy, EEOC Request No. 05970386 (June 13, 1997). 2020003787 8 Similarly, the Privacy Act, 5 U.S.C. § 552(g)(1), provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the United States District Courts for matters brought under the provisions of the Privacy Act. Bucci v. Dep’t of Educ., EEOC Request Nos. 05890289, 05890290, 05890291 (Apr. 12, 1989). To the extent that Complainant alleges that the Agency violated the Privacy Act or mishandled the processing of her FOIA request, we agree that such claims are beyond the Commission’s jurisdiction and fail to state a claim. However, we find that a fair reading of allegation (3) reflects that Complainant is alleging she was subjected to reprisal when G1 disclosed her EEO activity to her coworkers and supervisors, who did not have a need to know about Complainant’s EEO activity in order to respond to the FOIA request. The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claims of retaliatory actions are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see also, EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 at II.B (Aug. 25, 2016). Given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti-retaliation provisions of Title VII, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). For example, we have held that a supervisor threatening an employee by saying “What goes around, comes around” when discussing an EEO complaint constitutes an adverse action. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO complaint “as a friend,” even if intended innocently, is an adverse action. Woolf v. Dep’t of Energy, EEOC Appeal No. 0120083727 (June 4, 2009). Similarly, the Commission has held that disclosure of EEO activity by a supervisor to coworkers constitutes reprisal. Candi R. v. Envtl. Prot. Agency, EEOC Appeal No. 0120171394 (Sep. 14, 2018) (finding reprisal where a Regional Counsel for the Agency sent to all regional office attorneys two emails which contained personally identifiable and confidential information about Complainant's prior EEO complaint); Complainant v. Dep't of Justice, EEOC Appeal No. 0120132430 (July 9, 2015) (reprisal found where a supervisor broadcast complainant's EEO activity in the presence of coworkers and management); Complainant v. Dep't of Justice, EEOC Appeal No. 0720120032 (May 1, 2014) (complainant subjected to retaliation when HR employee and coworker inadvertently left message on complainant's work voicemail berating her and using strong language while discussing settlement of complainant's prior EEO complaint). The fact that the disclosure of Complainant’s EEO activity occurred within the context of processing a FOIA request does not remove the claim from the Commission’s jurisdiction. 2020003787 9 Analogously, the Commission has repeatedly held that, although the Commission does not have jurisdiction over the substance of a security clearance context, the Commission is not precluded from determining whether the grant, denial, or evocation of a security clearance is conducted in a discriminatory manner. See, e.g., Henry S. v. Dep’t of Def., EEOC Appeal No. 0720170020 (March 28, 2018); Schroeder v. Dep’t of Def., EEOC Request No. 05930248 (Apr. 14, 1994); Lyons v. Dep’t of the Navy, EEOC Request No. 05890839 (Mar. 22, 1990). Similarly, the Commission reversed the dismissal of a claim, pursuant to 29 C.F.R. § 1614.107(a)(8) for alleging dissatisfaction with the processing of a prior complaint and being a “spin off” complaint, where a complainant alleged that his supervisor showed his coworkers documents from his EEO complaint in an effort to affect the outcome of an EEO investigation. Maynard G. v. U.S. Postal Serv., EEOC Appeal No. 2019002518 (Sep. 17, 2019) (agency improperly dismissed claim as a “spin off” complaint because allegation that supervisor showed coworkers complainant’s EEO paperwork would constitute reprisal if substantiated). Therefore, we find that allegation (3) states a justiciable claim of reprisal and reverse the AJ’s dismissal of this claim. We further find that the record is sufficiently developed to address this claim and there are no genuine issues of material fact or issues of credibility that warrant a hearing. Consequently, we will consider the merits of allegation (3) herein. Upon review, we find that including a reference to Complainant’s EEO activity and harassment complaints in an email sent to several of her coworkers and virtually her entire management chain is reasonably likely to deter a reasonable employee from engaging in protected EEO activity.2 The record reflects that disclosure of Complainant’s prior EEO activity was not necessary to the processing of her FOIA request. In a May 24, 2018, email to the Deputy Inspector General, S4, S3, S2A, S1B, and the selectee for the GS-1811-12 Special Agent position advertised in vacancy announcement JRI-4-2016- 0004 (C3), G1 stated that the Agency had received a FOIA request from Complainant regarding OIG vacancy announcement numbers JRI-4-2016-0004 and JRI-4-2018-0001. G1 continued: As is our usual practice, we are working with IT to search for emails. We are limiting our search terms to the vacancy announcement number to reduce the number of nonresponsive emails returned. We also ask each of you to search your emails and provide us any records responsive to the attached requests. Specifically, we seek the following: • All emails and attachments which include documents regarding the position, hiring process and selection information regarding position JRI- 4-2016-0004. 2 There is some evidence in the record that there may have been rumors about Complainant’s EEO activity circulating in the workplace before May 24, 2018. C3 stated that, even before he received G1’s email, “I recall conversations with colleagues about rumors [Complainant] may be involved in some type of personnel action against the Agency.” ROI at 775. 2020003787 10 • All emails and attachments which include documents regarding the position, hiring process and selection information regarding position JRI- 4-2018-0001. ROI at 913. In a May 24, 2018, email to S1B, P1, C1, C2, and a GS-1811-13 Special Agent based in Jacksonville, Florida (C4), G1 similarly stated that the Agency had received a FOIA request from Complainant regarding OIG vacancy announcement numbers JRI-4-2016-0004 and JRI-4-2018-0001. G1 continued: As is our usual practice, we are working with IT to search for emails. We are limiting our search terms to the vacancy announcement number to reduce the number of nonresponsive emails returned. We also ask each of you to search your emails and provide us any records responsive to the attached requests. Specifically, we seek the following: • All emails and attachments which include documents regarding the position, hiring process and selection information regarding position JRI- 4-2018-0001. ROI at 914. G1 copied G2 on both of the emails. Of note, G1 was asking the recipients of the two May 24, 2018, emails to search for documents related to OIG vacancy announcement numbers JRI-4-2016-0004 and/or JRI-4-2018-0001. G1 did not ask the recipients of these emails to search for documents related to Complainant’s “EEO / Hostile Work Environment” file, thereby establishing that the recipients of these two emails did not have a need to know this information. Accordingly, we find that the Agency subjected Complainant to reprisal as alleged and remand this matter to the Agency for corrective action. Disparate Treatment - Allegation (1) To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant contends that S3 and S4 made age-related comments that suggest that age was a consideration in the selection process for the Atlanta ASAC position. However, even assuming that S3 and S4 made the alleged comments about the Agency’s aging work force and the number of Special Agents who would be eligible or required to retire in the coming years, we find that this is not material, as C2, the second candidate chosen for a second-round interview, is several years older than Complainant. Accordingly, we find that the AJ properly issued a decision without a hearing on this claim. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020003787 11 She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In a selection case, a complainant can attempt to prove pretext by showing that her qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996). The Agency’s legitimate, nondiscriminatory explanation for selecting C1 for the Atlanta ASAC position was that he performed well in the first-round interview, performed better than C2 in the second-round interview, had the requisite experience, and an “Outstanding” performance evaluation. As evidence of pretext, Complainant contended that her qualifications were plainly superior to C1’s qualifications. However, Complainant’s most recent performance rating was “Fully Successful.” Moreover, although Complainant argued that she had more overall experience than C1, this is not supported by the evidence. The record reflects C1 became a federal Criminal Investigator for the Agency in June 2010, whereas Complainant became a federal Criminal Investigator two months later, in August 2010, for another agency. Complainant did not start working for the Agency until June 2016. Accordingly, Complainant has not established that her qualifications were plainly superior or otherwise established that the Agency’s legitimate, nondiscriminatory reason is a pretext for discriminatory or retaliatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part the Agency’s final order as it relates to claims (1), (2), and (4). We REVERSE the Agency’s final order with respect to claim (3) and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency is ordered to take the following remedial action: 1. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant's claim of compensatory damages. The Agency shall allow Complainant to present evidence in support of her 2020003787 12 compensatory damages claim. See Carle v. Dep't of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 30 calendar days after the completion of the investigation. 2. Within 90 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training to G1, with a special emphasis on preventing reprisal for prior protected EEO activity. 3. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against G1. The Commission does not consider training to constitute disciplinary action. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of their departure date(s). 4. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled “Posting Order.” The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its OIG Region 4 facilities and at its Washington, D.C. OIG Office of General Counsel facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 2020003787 13 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020003787 14 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020003787 15 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 September 21, 2021 Date