0120162743
03-13-2018
Zola R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zola R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120162743
Hearing Nos. 550-2012-00145X
550-2012-00146X
550-2012-00147X
550-2012-00148X
Agency Nos. 6X-000-0005-10
6X-000-0047-10
6X-000-0004-11
6X-000-0041-11
DECISION
On August 29, 2016, 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 August 3, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Associate Area Medical Director, EAS-26 at the Agency's facility in San Francisco, California.
Complainant filed four EEO complaints alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (Asian American), national origin (Chinese), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. In support of her claim, Complainant alleged that the following events occurred:
1. On the bases of race and/or sex, when on October 13, 2009, the Agency issued her a Notice of Involuntary Reassignment to Windsor, Connecticut.
2. On the bases of race and/or sex, when on February 9, 2010, the Agency sent Complainant home without written order, pay or benefits.
3. On the bases of race, sex, and/or in reprisal for her prior EEO activity, when on March 29, 2010, the Agency directed her to go home where she remained in an Absent without Leave (AWOL)/Leave without Pay (LWOP) status until April 23, 2010.
4. On the bases of race, sex, and/or in reprisal for prior EEO activity, when on October 1, 2010, a Functional Associate Area Medical Director (AAMD) Review survey was sent to the Manager of Human Resources specifically referencing Complainant, asking "What do you think of [Complainant]?"
5. On the bases of race, sex and/or in reprisal for prior EEO activity, when from October 6, 2010 through November 2, 2010, the Agency harassed her regarding an evaluation form used for contractor employees.
6. On the bases of race, sex and/or in reprisal for prior EEO activity, when on November 18, 2010, management issued her a Letter of Instruction advising her how to improve her professionalism in the future.
7. On the bases of national origin (Chinese), race, sex, and/or in reprisal for prior EEO activity, when on September 9, 2011, the Agency terminated her employment pursuant to a Reduction in Force (RIF).
At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation and notices of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing on each of the four EEO complaints. On February 3, 2012, Complainant requested that the AJ consolidate the four complaints into a single hearing matter. The Agency concurred with Complainant's motion and the AJ consolidated Complainant's EEO complaints. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 22, 2016, motion for a decision without a hearing and issued a decision without a hearing on July 28, 2016.
The AJ issued her decision without a hearing. As an initial matter, the AJ listed her findings of facts which were not in dispute. The AJ indicated that Complainant's immediate supervisor during the relevant period of time was the Senior Areas Medical Director (Supervisor, Caucasian and Middle Eastern Extraction, Male, no indication of prior EEO activity). The AJ noted that for several years, the Agency's management had documented significant and ongoing deficiencies in Complainant's performance and conduct in the workplace. The AJ noted that Complainant was placed on two separate Performance Improvement Plans (PIP), had received rating evaluations of "poor," and failed to attend routine meetings. The AJ ran through a series of issues that occurred from 2002 when the District held a meeting to discuss Complainant's performance related to her second PIP. During the meeting, several issues reflected in the meeting notes included Complainant's failure to keep management informed of her schedule; her poor relationship with the Occupational Health Nurse Administrator (OHNA), her refusal to answer her phone and propensity to transfer calls to the unit nurses for screening, and her unprofessional conduct during District Reasonable Accommodation Committee Meetings. Complainant was issued the PIP in October 2002. In February 2003, the OHNA provided Human Resources with a memo regarding Complainant's ongoing performance and conduct problems. In essence, the OHNA concluded that Complainant continued to refuse to cooperate with others to perform her position which caused significant hardship on colleagues. On February 28, 2003, the Manager of Injury Compensation also submitted a memo to Human Resources raising his problems with Complainant's performance and conduct. Based on the feedback, in April 2003, Human Resources sent a letter to Complainant's management at the time indicating that Complainant's performance had not improved to a level that meets expectations. Human Resources requested that Complainant be replaced. The Senior Plant Manager sent a letter to Complainant's management indicating the lack of confidence that he and the staff have in Complainant's performance ability. The San Francisco District Manager also sent a letter regarding the numerous complaints regarding Complainant's lack of acceptable performance. Despite the number of complaints and calls for her termination by many senior officials, the Agency decided to retain Complainant.
In December 2007, the Agency assigned Complainant to her Associate Area Medical Director position. Her prior supervisor instructed Complainant to begin looking for a new position when she returned from annual leave on January 7, 2008. Complainant did not report to her new assignment upon her return from leave. As a result, on January 15, 2008, Complainant was issued a Letter of Instruction noting her failure to follow instructions. Complainant moved to her office in the San Francisco District. She was subsequently assigned to an AAMD position in the Pacific Area office.
In April 2009, the Agency determined that it needed to reduce the number of AAMD positions in the Pacific Area through Reduction-in-Force. On April 22, 2009, the Supervisor sent Complainant a letter informing her of the reduction in AAMD positions in the Pacific Area. Human Resources needed to conduct interviews to determine which AAMDs would be retained. The National Medical Administrator (White, Male, no known prior EEO activity) noted that Complainant had been an AAMD since 1992 and had been moved from District to District on several occasions. He indicated that Complainant's performance had only been minimally acceptable. On the other hand, the two AAMDs were seen as more valuable to the Pacific Area than Complainant. As such, Complainant was found to be the excess AAMD.
The National Medical Administrator attempted to facilitate Complainant's continued employment with the Agency following the RIF. The Agency searched for a vacant AAMD position and one such vacancy was found in the Northeast Area of Windsor, Connecticut. The National Medical Administrator sent Complainant a letter dated October 13, 2009, informing her of the reassignment and instructing her to report for duty in Windsor, Connecticut on January 4, 2010. The National Medical Administrator met with Complainant regarding her concerns about the reassignment and instruct her she had until November 10, 2009, to inform the Agency of whether she planned to accept the assignment. Complainant requested an extension. The National Medical Administrator indicated that Complainant was provided an extension until February 1, 2010, to report to the new assignment if she accepted it. On December 4, 2009, Complainant requested a five-month extension. The National Medical Administrator denied the five-month extension. On January 14, 2010, Complainant asked if she could work remotely and occasionally travel to the Northeast Area because she was not willing to relocate from the San Francisco Bay Area. The National Medical Administrator denied Complainant's request to work remotely on January 27, 2010. Complainant was provided until February 8, 2010, to report to her new assignment. Complainant failed to report for duty.
On February 9, 2010, the National Medical Administrator sent Complainant a letter indicating that she failed to report for duty and instructed her to cease reporting to work in San Francisco for there was no position for her in the Pacific Area. On February 25, 2010, the National Medical Administrator sent a second letter instructing Complainant to stop reporting to work in San Francisco. He also informed her that she would be marked Absent without Leave (AWOL) beginning on March 5, 2010.
On March 6, 2010, Complainant sent a letter to the National Medical Administrator declining the relocation to the Northeast Area but stated that she would be willing to accept the reassignment if she could work remotely. On March 11, 2010, the National Medical Administrator responded that the job requirements precluded Complainant from working remotely. Complainant never reported to the Northeast assignment and the Agency did not terminate her. Complainant was placed in AWOL status from March 29, 2010 through April 23, 2010. On April 6, 2010, the National Medical Administrator offered a Pacific Area AAMD position when one became vacant. Complainant accepted the position and returned to work on April 26, 2010.
When Complainant returned to an AAMD position in the Pacific Area, Agency officials sent out evaluations regarding Complainant's performance in her position to the San Francisco Human Resources. This was part of an Agency wide policy that required Human Resources Managers to complete AAMD evaluations forms for AAMDs, Senior Area Medical Directors and OHNAs. As such, the Manager of Human Resources was sent an evaluation referencing Complainant.
On October 6, 2010, the Supervisor sent Complainant an email instructing her to complete a self-evaluation. On October 13, 2010, the National Medical Administrator sent Complainant an e-mail stating that he had not received her self-evaluation. Complainant was given a deadline of October 18, 2010, to complete the form. Complainant complied by faxing the self-evaluation. However, the National Medical Administrator noted that Complainant's responses were sparse providing only the word "yes" to 23 categories and subcategories when she was asked to provide specific examples or descriptions. The same day, the National Medical Administrator instructed Complainant to complete the form with more information by November 2, 2010. On that day, the National Medical Administrator e-mailed Complainant and other officials who had not submitted self-evaluations asking that they comply by November 10, 2010. On November 9, 2010, he contacted Complainant and 8 remaining individuals who did not submit form and were to do so by November 12, 2010. Complainant resubmitted her self-evaluation on November 10, 2010.
During this time, the Supervisor issued Complainant a verbal reprimand for failing to contact him to discuss a fitness for duty examination she performed on an employee. Complainant challenged that the Supervisor had indicated she needed to contact him and that the verbal reprimand was unwarranted.
On December 10, 2010, Complainant faxed leave request forms to the National Medical Administrator for December 15, 2010, and from December 20, 2010 through January 3, 2011. He approved the requests. Complainant failed to inform the Supervisor or the other employees and management who work with her in the Pacific Area. Complainant took leave and left an automatic out-of-office e-mail message but did not change her voicemail greeting. On December 29, 2010, the Supervisor issued Complainant a Letter of Instruction noting that Complainant failed to inform stakeholders of her leave and that the e-mail response did not provide for an alternative contact person. The Letter also instructed Complainant to inform the Supervisor and others when she will be out of the office for a stretch of time; provide an alternate contact; and set up an out-of-office voicemail greeting.
In 2011, the Agency restructured the medical department eliminating all 16 of its AAMD positions. As a result, the Agency conducted a second RIF action. On April 12, 2011, the Director (Male, American, unknown prior EEO activity) sent an email to all AAMDs and Senior Area Medical Directors with the 2011 organization redesign. On May 27, 2011, the Agency sent Complainant her formal RIF notice.
As part of the reorganization, the Agency eliminated all AAMD positions and maintained eight Senior Area Medical Director positions. The four Senior Area Medical Directors retained their positions leaving four vacancies for Senior Area Medical Directors. The 16 AAMDs were considered for the vacant Senior Area Medical Director position. The Agency formed a committee of five officials to determine who should fill the Senior Area Medical Director positions. Complainant submitted her resume to the review committee on May 20, 2011. The AJ noted that Complainant's resume was less than one page long and her cover letter did not offer any details regarding her contributions or achievements. In contrast, the AJ noted that the four selectees (all Males, unknown national origin/race, unknown prior EEO activity) provided resumes which ranged from two pages to twelve pages long providing detailed information regarding experiences, skills, training, prior experiences, achievements, and awards. Complainant, on the other hand, under the heading "Qualifications" indicated that she had been employed by the Agency as a physician and listed her job duties. The AJ held that the review committee weighed three criteria equally: medical education, medical specialty, and previous work experience. The AJ noted that they did not conduct interviews. As a result of the review, the review committee chose Selectee 1, Selectee 2, Selectee 3, and Selectee 4 for the four Senior Area Medical Director positions. On September 9, 2011, the Agency separated Complainant pursuant to the RIF action.
Based on these facts, the AJ issued her analysis of Complainant's claims of discrimination and harassment. The AJ held that Complainant failed to identify any evidence of unlawful discrimination or to establish a prima facie case of discrimination based on sex, race, national origin and/or in retaliation for her prior EEO activity. As for claims (1), (2), and (3), the AJ noted that Complainant had an undisputed long record of poor work performance and unprofessional conduct. The AJ pointed to the number of complaints lodged against Complainant from a number of various Agency officials who noted her lack of professionalism, poor social skills, uncooperative attitude, and inability or unwillingness to perform basic responsibilities of her position. The AJ also cited the two separate PIP actions. As such, in claim (1), when the Agency reduced the number of AAMD positions in the Pacific Area from three to two, the AJ held that Complainant failed to show that the two remaining AAMDs had the same litany of complaints from so many different Agency officials as Complainant. Further, the AJ found no reference to Complainant's race, sex or retaliation was used regarding the RIF. The AJ also held that the Agency engaged in standard RIF protocol when it searched for a vacant position to which Complainant could be reassigned in lieu of separation. As a result, the Agency provided Complainant with a transfer to the Windsor, Connecticut AAMD position. Turning to claims (2) and (3), the AJ found that it was Complainant's own failure to report for duty as instructed to the Windsor, Connecticut position resulted in her AWOL/LWOP.
In claims (4) and (5), Complainant alleged that she was subjected to discrimination regarding the October 2010 evaluation form being sent to the Manager of Human Resources and for being harassed to provide her self-evaluation forms. The AJ held that Complainant provided no evidence to show that the alleged events occurred because of her race, sex, and/or reprisal for her prior protected activity. In addition, the AJ noted that these events did not constitute adverse employment actions nor did they constituted actionable harassment.
As to the Letter of Instruction alleged in claim (6), the AJ found that Complainant provided no evidence to establish that the Supervisor's action was motivated unlawful discrimination and/or retaliation. The AJ held that it was Complainant's failure to notify the Supervisor or other stakeholders of her absence in December 2010, which lead to the Supervisor issuing the Letter.
Finally, the AJ addressed claim (7). Again, the AJ concluded that Complainant provided no evidence that the RIF action was discriminatory. The AJ found that Complainant was treated the same as all the other AAMDs in the Agency and she was considered for one of the four Senior Area Medical Director positions. The AJ determined that Selectees 1 - 4 had been chosen for the Senior Area Medical Director positions based on their respective records and achievements.
Assuming arguendo that Complainant established her prima facie case of discrimination based on race, sex, national origin and/or retaliation, the AJ then turned to the Agency to articulate legitimate, nondiscriminatory reasons for its actions. As for claim (1), the AJ held that the Agency's review of the three AAMDs in the Pacific Area, Complainant was the lowest-contributing official. Further, Complainant was charged with AWOL based on her repeated failure to follow the directions of the National Medical Administrator regarding reporting to her new assignment. As such, the AJ concluded that the Agency provided legitimate, nondiscriminatory reasons for the actions taken in claims (2) and (3). As for claims (4) and (5), the AJ determined that the Manager of Human Resources had been tasked with completing reviews of all the AAMDs including one for Complainant and that Complainant was required by the National Medical Administrator to provide a self-evaluation. The AJ found that the Supervisor explained that his issued the Letter alleged in claim (6) for Complainant's failure to notify him and other stakeholders of her absence from work in December 2010. Finally, as for the separation action raised in claim (7), the AJ found that the Agency had undergone a reorganization eliminating all AAMD positions nationwide. The Agency had four available Senior Area Medical Director positions. Complainant provided a resume which was only a page long for consideration for one of the four Senior Area Medical Director positions. On the other hand, Selectees 1-4 had provided more supporting materials for the review committee to consider demonstrating their qualifications, achievements and commitment to the Agency. The AJ found that Complainant did not demonstrate her qualifications to the review committee. Based on her review of the record, the AJ concluded that Complainant failed to show that she was subjected to disparate treatment as she alleged in her formal complaints.
The AJ then turned to Complainant's claim that she had been subjected to a pattern of ongoing discriminatory harassment. The AJ noted that she viewed the events in the factual light most favorable to Complainant. However, the AJ held that Complainant had a long history of unacceptable performance and unprofessional conduct which had continued through the years as demonstrated by her failure to follow instructions including the RIF in 2009, meeting expectations of her superiors in 2010, and finally in her separation from in employment in September 2011. The AJ found that the record was devoid of any evidence to demonstrate that the events alleged by Complainant occurred because of her race, sex, national origin, and/or prior EEO activity. Therefore, the AJ granted the Agency's motion for summary judgement and concluded that Complainant failed to demonstrate that she was subjected to unlawful discrimination and/or harassment.
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. Complainant appealed asserting that she saw men being treated differently and more favorably which led her to believe that she was subjected to race, sex, and retaliatory harassment. Complainant's Attorney argued that her claims begin with the Agency's processing of the RIF in 2009 where the Agency maintained term contract employees rather than maintaining a permanent employee like Complainant in her AAMD position in the Pacific Area. The Attorney claimed that the RIF action in 2009 was illegal. The Attorney then argued that the investigation was inadequate and that she sought to order the Agency to produce documentary evidence. However, the Attorney indicated that discovery had been stayed and the AJ never lifted Complainant's request for discovery to be suspended. The Attorney then asserted that the Agency's 2011 RIF action was also flawed in that one of the AAMDs selected for one of the Senior Area Medical Director positions was a contract employee. The Attorney requested that the Commission vacate the Agency's decision and rather than sending the matter back to the AJ for development of the record the Attorney suggested that the Commission should find that Complainant was subjected to discrimination. The Attorney also argued that Complainant had been subjected to harassment and unlawful retaliation which the AJ failed to properly address. As such, the Attorney asked that the Commission find that Complainant was subjected to discrimination and harassment as she alleged in her complaints of discrimination. The Agency asked that the Commission affirm its adoption of the AJ's decision.
ANALYSIS AND FINDINGS
Summary Judgment
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
On appeal, Complainant, through her attorney, argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
Disparate Treatment
In claims (1), (2), (3), (6), and (7), Complainant asserted that she was subjected to disparate treatment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ correctly held that the Agency provided legitimate, non-discriminatory reasons for its action. As for claim (1), the Agency indicated that it had determined that the Pacific Area needed only two of the three AAMDs. Based on management's review of the AAMDs, the National Medical Administrator averred that Complainant's performance had been at a level of "minimal acceptability." In addition, the Agency provided evidence that Complainant had performance issues over a number of years. The National Medical Administrator noted that Complainant had been moved from District to District on several occasions. Based on management's review of the AAMDs, Complainant was determined to be the excess AAMD. Therefore, the Agency looked to reassign Complainant to a vacant AAMD position which was found in Windsor, Connecticut. Based on the reassignment, the Agency directed Complainant to report to the Northeast Area office. When Complainant failed to report to her new assignment and continued to report to her former workplace, the Agency sent Complainant home and placed Complainant in AWOL/LWOP status as alleged in claims (2) and (3). As to claim (6), the Supervisor asserted that he issued Complainant a Letter of Instruction on December 29, 2010, based on Complainant's failure to inform him and stakeholders of her absence from the workplace. Finally, as to claim (7), the Agency indicated that it was to eliminate all AAMD positions, pursuant to an Agency-wide reorganization. The Agency had four available Senior Area Medical Director positions to which excess AAMD employees could be reassigned. The Agency asked each of AAMD employees to submit a resume for review by management. Management indicated that the resumes were evaluated based on medical education, medical specialist and previous work experience. Based on these criteria, the Agency selected four other AAMDs and not Complainant.
Finding that the Agency has articulated legitimate, non-discriminatory reasons for its actions, we turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Upon review, we find that Complainant merely asserted that she was singled out based on her race, sex, national origin, and/or her prior EEO activity. She claimed that the Agency's RIF actions were "illegal." We find that these bald assertions alone are not sufficient to show that the Agency's reasons were pretext for discrimination.
Harassment
In her harassment claim, in addition to the incidents discussed above, Complainant alleged that the Manager of Human Resources was asked to provide a review survey of Complainant and the National Medical Administrator repeatedly asked for her to provide a self-evaluation. Complainant asserted that all the events alleged occurred based on her race, sex, national origin, and/or prior EEO Activity.
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex, national origin and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's race, sex, national origin or prior protected activity played any role whatsoever in the decisions regarding the RIF actions in 2009 and 2011, the placement of Complainant in AWOL/LWOP status, and the issuance of the Letter of Instruction. Moreover, the Agency provided legitimate, non-discriminatory explanations for the Manager of Human Resources review of Complainant and Complainant's self-evaluation. The record indicated that all Human Resources Managers were tasked with providing evaluations of all AAMDs like Complainant as they are stakeholders in the District and provide feedback to the AAMDs in order to achieve the purpose of improving service in the District. Further, as to the evaluation form sent by the National Medical Administrator, the Agency asserted that all AAMDs are sent the same self-evaluation form to be filled out in order to provide oversight and feedback between AAMDs and management. In sum, Complainant failed to prove that her race, sex, national origin, or retaliatory animus played any role in the incidents she proffered as evidence of her harassment claim.
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 action implementing the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 13, 2018
__________________
Date
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.
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