Michael Opare-Addo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency. Appeal No. 01200608021 Hearing No. 210-2005-00075X Agency Nos. 1J-607-0012-04; 4J-606-0247-04 DECISION On November 2, 2005, complainant filed an appeal from the agency's October 4, 2005 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, complainant worked as a Manager, Distribution Operations (MDO) at the Processing and Distribution Center (P&DC), in Chicago, Illinois. On October 1, 2003, complainant was reassigned by the Senior Manager, Distribution Operations (LW), from managing the Automation unit, to managing the Small Parcel Bundle Sorter (SPBS) unit. Complainant's position as MDO of Automation was an EAS-20 pay level. Complainant was reassigned at the same pay level. An EAS-24, MDO, who had previously served in the position to which complainant was transferred, was assigned to complainant's position in the Automation unit. On December 23, 2003, the agency posted Vacancy Announcement # 08705 for the position of Manager Distribution Operations, EAS-24, at the Irving Park Road Processing and Distribution Center. Complainant applied for the position and was one of four applicants who were recommended by a Review Committee to the selecting official (SO). In June 2005, SO did not select any of the four candidates referred to him, but instead selected LW, an EAS-25 Supervisor MDO. LW later declined the position. Accordingly, no selection was made. Instead, the announcement was cancelled and the same position was subsequently re-advertised by a different vacancy announcement. During the second selection process, five applicants were referred to the SO. After he reviewed and interviewed the five applicants referred to him, the SO decided not to fill the subject position. The position was subsequently posted for a third time. During the third posting period, the position was finally filled with a non-competitive lateral candidate, and not through any of the postings. On December 12, 2003 and November 22, 2004, complainant filed EEO complaints alleging that he was discriminated against on the bases of national origin (Ghana) and in reprisal for prior protected EEO activity when: 1. on October 1, 2003, he was transferred or reassigned to the Small Parcel Bundle Sorter (SPBS) Dock Operations at the Cardiss Collins P&DC. Although an EAS-24 pay level employee previously served in the position to which he was transferred, the agency denied his request for higher level pay and continued to pay him as a regular EAS-20; 2. following his reassignment, the agency assigned an EAS-24 pay level employee to the Automation MDO position vacated by complainant; and 3. on or about August 13, 2004, he received a letter from Human Resources, stating that vacancy Announcement #08705, which he applied for, was being reposted in order to attract a larger pool of qualified applicants. At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 24-25, 2005, the AJ conducted a hearing, and issued a bench decision on September 13, 2005. The AJ found that the agency articulated legitimate, nondiscriminatory reasons for its actions, and complainant did not present evidence that the agency's reasons were pretext for discriminatory animus. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that he was subjected to discrimination as alleged. ANALYSIS AND FINDINGS 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 Board, 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 EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). In general, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For complainant to prevail, s/he 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). Once complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts to the 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 his/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 Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Following the three-part scheme of McDonnell Douglas Corporation v. Green, supra, for analysis of claims alleging disparate treatment based on reprisal, complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (December 6, 1996). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, supra, to establish a prima facie case of reprisal, s/he must show: (1) s/he engaged in a prior protected activity; (2) the official acting on behalf of the agency was aware of the protected activity; (3) s/he was subjected to adverse treatment by the agency; and (4) a nexus, or causal connection, exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A000340 (September 25, 2000). As an initial matter, we note that a fair reading of the formal complaint, the complaint file and the appeal indicates that complainant alleged that he was subjected to discrimination on the bases of national origin (Ghana) and in reprisal for prior protected activity when: (1) he was involuntarily reassigned to the SPBS unit; (2) he was denied higher level pay for higher level work; and (3) in August 2004, he was not selected for the Manager, Distribution Operations EAS-24 position. Accordingly, we will address each claim separately. Complainant's reassignment Pursuant to review of the record, we find that complainant establish a prima facie case of reprisal and national origin discrimination. Complainant is a member of a protected group by virtue of his national origin (Ghana) and he was subject to an adverse action when he was involuntarily reassigned to the SPBS unit. The record also shows that complainant engaged in prior EEO activity, which was in April 2002, and that the instant complaint concerned the actions of LW, who was cited as the responsible official in complainant's prior EEO activity. Next, the agency is required to articulate a legitimate, nondiscriminatory reason for its action. The agency's explanation must be sufficiently clear to raise a "genuine issue of fact" as to whether discrimination occurred. Burdine, 450 U.S. at 254. Moreover, it must "frame the factual issue with sufficient clarity so that [complainant] will have a full and fair opportunity to demonstrate pretext." Id. at 255-256; Parker v. United States Postal Service, EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at 256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983) and Burdine, 450 U.S. at 256. While the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded the affected employee. Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997). Here, we find that the agency failed to meet its burden of production under McDonnell Douglas. The agency provided no legitimate, nondiscriminatory reason for reassigning complainant to the SPBS unit. During the investigation LW merely stated that he does not remember assigning complainant a new responsibility and does not remember complainant's former responsibilities.2 During the hearing, Manager, Distribution Operation (MJ) testified that he was instructed by LW to reassign complainant, but LW gave him no reasons for the reassignment. In addition, while complainant's file does not contain any documentation or notes regarding the reassignment, the agency does not deny that complainant was reassigned as he claims. Moreover, the record shows that complainant was verbally informed of the reassignment during a staff meeting, and was never provided with documents or a Form 1723 (Assignment Order). The record also shows that management never discussed the reasons with complainant for the reassignment. After a careful review of the record, the Commission concludes that the AJ's findings of fact are not supported by substantial evidence. We find legal deficiencies in the AJ's decision. The AJ erroneously concluded that the agency articulated legitimate, non-discriminatory reasons for its actions.3 We find that the record is utterly devoid of testimony that would explain the reason for the reassignment. There are simply no details about why complainant was reassigned. Moreover, the AJ erred when he suggested a legitimate reason for complainant's reassignment when the agency failed to articulate one. Specifically, we note that the AJ determined "the reason for complainant's reassignment could just as easily have been a reflection of management's confidence in complainant's managerial abilities." We find that the AJ's determination is based on assumptions and incorrect law. There was no evidence in the record to support the AJ's determination. Complainant's managerial abilities or performance were never discussed as part of the instant complaint. The Commission finds that the agency failed to set forth, with sufficient clarity, a legitimate reason why it reassigned complainant to another unit. As such, he has been deprived of a full and fair opportunity to demonstrate that the reason is a pretext for national origin or reprisal discrimination. The agency has therefore failed to meet its burden of production sufficient to overcome complainant's prima facie case of national origin and reprisal discrimination. See Prevo v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01972832 (March 10, 2000). The consequence of that failure is that complainant, having established a prima facie case, prevails without having to make any demonstration of pretext. We further find that the AJ also erred in concluding that complainant's conditions of employment were not altered by his reassignment. The record reveals that complainant was reassigned to a different unit, with higher level duties and responsibilities. Moreover, we note that for complainant, working at the SPBS was considered a demotion because working in Automation provided him better employment opportunities inside the Postal Service. Accordingly, we conclude that the reassignment altered complainant's conditions of employment. Therefore, we conclude that the agency discriminated against complainant based on his national origin and in reprisal for prior EEO activity when he was involuntarily reassigned as MDO to the SPBS unit. Accordingly, as to claim (1) we reverse the agency's final decision finding no discrimination. Complainant's pay level Complainant alleged that he was discriminated against when the agency denied him his request for EAS-24 pay level, although an EAS-24 pay level employee previously served in the position to which he was transferred. Complainant also alleged that following his reassignment, the agency assigned an EAS-24 pay level employee to the Automation MDO position vacated by him. After careful review of the record, we conclude that the AJ's findings of fact are not supported by substantial evidence. As an initial matter, we concur with the AJ's determination that the agency articulated legitimate, non-discriminatory reasons for denying complainant a higher level pay. However, we find that the AJ erroneously concluded that complainant failed to establish pretext following the agency's legitimate, nondiscriminatory reasons for its actions. We note that the agency articulated several legitimate, non-discriminatory reasons for denying complainant a higher level pay. In the McDonnell Douglas scheme, once the agency articulates legitimate, nondiscriminatory reasons for its actions, the ultimate burden of persuasion in on the complainant to demonstrate by preponderant evidence that the reason given by the agency for its actions are a pretext, or a sham or disguise, for discrimination. Pretext can be demonstrated by "showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Dalesandro v. United States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (citing Morgan v. Hilti, Inc., 108 F3d 1319, 1323 (10th Cir. 1997)). We find that complainant presented such evidence. In reaching this conclusion, we note that agency's several explanations were confusing, contradictory, and lacking in credibility. Moreover, we find that the agency's reasons for its actions were successfully rebutted by complainant. In the instant case, the AJ found that the principal criteria for promoting an MDO to a higher pay level was the number of junior managers or supervisors he or she, in turn, supervised. Specifically, the agency alleged that pay levels are determined as follows: EAS-18: 1-3 subordinate supervisors; EAS-20: 4-6 subordinate supervisors; EAS-22: 10-12 subordinate supervisors; and EAS-24: 13 or more subordinate supervisors. The AJ also found that complainant's unit in particular was understaffed with supervisors. The AJ further determined that complainant supervised between six and nine supervisors, but "if you count 204-Bs, at times complainant directed as many as 14 or 15 supervisors." The AJ concluded that "it does not appear, however, that the agency counts 204-Bs when determining an MDO's pay level." However, we find no substantial evidence in the record to support the AJ's determinations. First, we find that the record reflects that the SPBS unit had more than 9 supervisors assigned. Complainant presented evidence that he had as many as 15 supervisors, including acting supervisors (204-B). DW testified that the SPBS unit had 13 authorized supervisors.4 DW explained that is not how many supervisors are working at the same time, but rather is based on the total amount of supervisors that are under the MDO's responsibility. We further find that the AJ's determination that "it does not appear, however, that the agency counts 204-Bs when determining an MDO's pay level," was based on assumptions rather than evidence. There is no evidence in the record concerning whether the 204-Bs supervisors are excluded in determining MDOs pay levels. We find no evidence or testimony that can support that determination. In addition, we find that during the hearing, management provided contradictory testimony regarding this matter. Specifically, testimony during the hearing reflects that some MDOs are level 24 regardless of the number of subordinates they supervised. Moreover, the evidence in the record shows several EAS-24 that supervised fewer than 13 subordinate supervisors, who are paid at the EAS-245 grade level. We also find weakness and inconsistencies when DW testified that MDO's grade level "originally was based on the number of employees or equipment."6 We find that the "equipment" criteria were not mentioned during the investigation or by other management officials during the hearing. Also, it is not clear from his testimony which factors are currently used to determine an MDO's pay grade level. The Commission also finds that the AJ failed to note evidence and testimony that shows that complainant was treated differently than others outside of his protected group. Specifically, substantial evidence in the record reflects that since the early 1990s MDOs at the SPBS area were at the EAS- 24 pay level. During the hearing, a manager of Distribution Operations (LAM) testified that the MDO grade level assigned to the SPBS area in or about October 2003, was Level 24. LAM explained those were the levels that were assigned when the agency moved into the new building back in early 1990s because of the number of employees.7 DW also testified that based on the number of supervisors (13), the MDO level at the SPBS unit is 24.8 The record further reveals that complainant presented an e-mail from LW, in which LW identified the SPBS unit as EAS-24 level. Accordingly, we conclude that complainant was subject to discrimination when he was not provided the same pay level, EAS-24, as others outside of his protected group when performing the same duties and responsibilities as MDO for the SPBS area. Therefore, the Commission finds that complainant established, by a preponderance of the evidence, that he was discriminated and retaliated against when he was denied higher level pay for higher level work. Accordingly, we REVERSE the agency's final decision finding no discrimination. Complainant's non-selection Complainant alleged that he was discriminated against when he was not selected for the Manager, Distribution Operations, EAS-24 position. After review of the record in its entirety, the Commission agrees with the AJ that, assuming arguendo, complainant established a prima facie case of discrimination, the agency articulated legitimate, nondiscriminatory reasons for complainant's non-selection. The record reveals that SO canceled the first vacancy announcement and decided to readvertise the position in hopes of getting a larger pool of qualified applicants. For this reason no selection was made. Although the agency advertised the position for a second time, the SO decided not to fill the subject position. Management decided to use the position as a training venue for employees temporarily assigned. Later, the position was advertised for a third time, but SO decided to fill the position non-competitively with a lateral transfer. Further, we concur with the AJ's finding that complainant failed to proffer evidence that the agency's articulated reasons for its actions were more likely than not a pretext for discrimination. As such, we affirm the agency's final decision finding no discrimination regarding complainant's non-selection for the Manager, Distribution Operations position. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE, in part, and AFFIRM, in part, the agency's final decision. We REMAND this case to the agency to take remedial actions in accordance with this decision and the ORDER set forth below. ORDER The agency is ordered to take the following remedial action: 1. Within thirty (30) calendar days of the date this decision becomes final, the agency shall retroactively reinstate complainant to his former position of Manager, Distribution Operations (MDO) at the Automation area, or another substantially equivalent and mutually agreeable position. 2. Within sixty (60) calendar days of the date this decision becomes final, the agency shall determine the appropriate amount of back pay at the EAS-24 level with interest and other benefits due complainant from the period of time he performed the duties as an MDO at the SPBS area, pursuant to 29 C.F.R. § 1614.501. If complainant is currently performing the duties of MDO at the SPBS area, then back pay should be calculated since his first day at the SPBS area until the present. Complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The agency shall forward the case to the Hearings Unit of the appropriate District Office for assignment of an Administrative Judge to render a determination on the issue of compensatory damages and attorney's fees, if any. Thereafter, the Administrative Judge shall issue a decision on this issue in accordance with 29 C.F.R. § 1614.109, and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110 within forty (40) days of receipt of the Administrative Judge's decision. The agency shall submit copies of the Administrative Judge's decision and the final agency action to the Compliance Officer at the address set forth below. 4. The agency is directed to provide a minimum of (8) eight hours of EEO training to all of the responsible management officials at the Cardiss Collins P&DC. The Commission does not consider training to be a disciplinary action. 5. The agency shall consider taking appropriate disciplinary action against the responsible management officials. The agency shall report its decision to the compliance officer. 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. The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the agency's calculation of back pay and other benefits due to complainant (if any), including evidence that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its Cardiss Collins P&DC facility, in Chicago, Illinois, copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she 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 this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 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 (T0900) 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. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations November 20, 2007 __________________ Date 1 Due to a new data system, this case has been redesignated with the above-referenced appeal number. 2 Over complainant's objections, LW was excused from testifying at the hearing. 3 AJ's Bench Decision, page 527-528. 4 Hearing Transcript, page 167. 5 Report of Investigation, "Staffing data, Forms 50 and employee information," page 9. 6 Hearing Transcript, page 188. 7 Hearing Transcript, page 151. 8 Hearing Transcript, page 192. ?? ?? ?? ?? 2 0120060802 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 11 0120060802