U.S. Equal Employment Opportunity Commission (E.E.O.C.) * * *, COMPLAINANT v. KATHERINE ARCHULETA, DIRECTOR U.S. OFFICE OF PERSONNEL MANAGEMENT, AGENCY. AND CAROLYN W. COLVIN, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, AGENCY. EEOC Appeal Nos. 0120120901 and 0120123038 Hearing Nos. 100-2002-07818X and 100-2002-07544X OPM Agency No. 10-22 and SSA Agency No. 01-0416-SSA December 2, 2013 DECISION Complainant, an employee of this Commission, appeals from final agency decisions issued by the Office of Personnel Management (OPM) and the Social Security Administration (SSA) on her claims that those two agencies retaliated against her for prior protected activity by colluding in 2001 to cause her name not to appear on a certificate of eligibles for an Administrative Law Judge (ALJ) position with SSA. Specifically, she contends that in reprisal for her prior protected activity, OPM caused SSA to submit a February 2, 2001 amendment to its January 19, 2001 request for a certificate of eligibles, deleting Washington, D.C. as a location where ALJ vacancies needed to be filled. The two above-referenced appeals are hereby consolidated for disposition, as they arise from complaints that were consolidated for the hearing process before an EEOC Administrative Judge (AJ) below. For the reasons set forth below, we affirm the findings of no discrimination in the final agency decisions. Facts and Background A. Complainant's Original Discrimination Claims On May 20, 1994, Complainant filed a formal EEO complaint against OPM, agency case no. 94-25 * * * I), alleging: (1) the 1993 selection process for ALJ positions was designed and administered to have an unlawful disparate impact on female and African-American applicants; and (2) OPM discriminated against her based on race and sex, and retaliated against her, in reviewing and scoring her application, and/or in refusing to allow her to take a re-test, after the challenged the ALJ examination and selection process as discriminatory. Following an investigation, Complainant requested a hearing, and ultimately the matter was assigned to a contract Administrative Judge (AJ 1), and the matter was docketed as EEOC Hearing No. 100-95-7644. Complainant subsequently prevailed before AJ 1 on one of her claims of race discrimination. Specifically, AJ 1's decision found that OPM's use of a benchmark on the Supplemental Qualifications Statement (SQS) of the ALJ exam that awarded applicants points for having partnership status at a large (200+ member) law firm had an impermissible disparate impact based on race. In November 2000, AJ 1 ruled for the agency on all other claims, finding that: (1) the 1993 exam did not have disparate impact on African Americans; (2) the 1993 exam did not have a disparate impact on women; and (3) the agency did not engage in retaliation or intentional race or sex discrimination against Complainant, By order dated July 29, 2001, AJ 1 required OPM "to cease use of the 'partner in a large law firm' benchmark until its use has been properly validated ... or until the disparate impact disappears," and further ordered OPM to post and provide notice to agencies of the discriminatory benchmark and of the AJ's order in EEOC Hearing No, 100-95-7644. On August 8, 2001, OPM issued its final order (agency case no. 94-25) staling it would fully implement the AJ's decision. On August 23, 2001, Complainant filed an appeal contending that OPM had failed to comply with the AJ 1's order or its own final action. On September 6, 2001, she filed another appeal in the same case, challenging the AJ's decision to the extent the AJ found in favor of the agency on all claims other than the "partner in a large law firm" benchmark. By consolidated decision issued May 16, 2003 on these appeals, EEOC Appeal Nos. 01A15194 and 01A14969, EEOC affirmed OPM's final agency decision in agency case no. 94-25, and rejected Complainant's allegation of non-compliance. Complainant requested reconsideration on both appeals. In addition, Complainant filed another "compliance appeal" docketed as appeal no. 01A43671 in which she alleged that OPM was still not complying with its final action. By consolidated decision issued January 3, 2005, EEOC dismissed both requests for reconsideration (EEOC Request Nos. 05A30918 and 05A30920), as well as the new compliance appeal (EEOC Appeal No. 01A43671), citing the pendency of a civil action Complainant had filed against OPM, Menoken v. Dan G. Blair, Acting Director, U.S. Office of Personnel Management, Civil Action No. 03-01775 (HHK) (D.D.C.), which deprived EEOC of jurisdiction over the same claims in the administrative process. In the civil action, the district court denied OPM's initial motion to dismiss or in the alternative for summary judgment, in which OPM asserted that Complainant had failed to exhaust her claims at the administrative level, failed to meet the preconditions for an "enforcement action," and improperly limited or fragmented review of her claims. In denying the motion in its entirety. the district court ruled that Complainant's suit was not an enforcement action under 29 C.F.R. Section 1614.503(g), but rather that she sought "to litigate her claims in their entirety and de novo," Menoken v. Dan G. Blair, Acting Director, U.S. Office of Personnel Management, 2005 WL 3273091 (D.D.C. Sept. 27, 2005). By opinion issued April 26, 2006, 2006 WL 1102809, the district court denied Complainant's motion for partial summary judgment, which sought a determination that the ALJ examination has a disparate impact on the basis of race and gender. According to the district court's decision, Complainant argued: (1) OPM had a mistaken understanding of how validity is measured under Title VII when it initially developed the exam; (2) the process OPM used to develop the ALJ examination ran counter to methods generally accepted by professionals in the field; and, (3) the ALJ examination does not "actually measure" the qualifications necessary to adequately fulfill the duties associated with serving as an ALJ. The court stated that, in opposition to the summary judgment motion, OPM argued that it was not obligated to demonstrate that the ALJ exam is sufficiently related to the skills and knowledge required to act as an ALJ until Complainant satisfied her initial burden of proffering evidence that the facially neutral ALJ exam had a disparate impact on a protected class of individuals. Following further discovery, the district court granted summary judgment in favor of OPM on the following 3 causes of action in the amended complaint, as characterized by the court: "First. Menoken alleges that OPM failed to comply with the AJ's order requiring it to cease and correct unlawful discrimination against Black applicants caused by the partner benchmark. Second, Menoken alleges that the SQS and PRI components of the ALJ examination unlawfully discriminate against Black applicants in general and against her in particular. Third, Menoken alleges that the geographic preference form used to identify where persons on the ALJ register are willing to work unlawfully discriminates against female applicants in general and against her in particular." Menoken v. Whipple, 605 F. Supp. 2d 148 (D.D.C. 2009). With respect to the first cause of action -- that OPM failed to comply with the original AJ order to cease and correct discrimination against African-American ALJ applicants caused by the partner benchmark -- the court cited specific documentary and testimonial evidence submitted by OPM, and held: OPM has provided abundant admissible evidence substantiating its full compliance with the AJ's order to cease and correct the discrimination caused by the partner benchmark. Menoken has not countered with sufficient evidence to create a genuine issue of material fact as to OPM's efforts toward compliance .... Menoken also has failed to provide a compelling legal basis in support of her claim; her arguments essentially boil down to the assertion that OPM has not complied with the AJ's order. The record evidence plainly shows, however, that OPM has complied. Id. at 151. With respect to the claims of disparate impact based on race and sex contained in the second and third causes of action, the court concluded: "Despite a protracted and highly-contested period of discovery, Menoken fails to point to specific evidence from which a jury could find in her favor." Id. at 155. With respect to the claims of disparate treatment, the court similarly concluded: "Menokeu has not adduced sufficient evidence of discrimination to survive summary judgment." Id. The district court's decision was affirmed by the U.S. Court of Appeals for the D.C. Circuit, Menoken v. Berry, 2010 WL 4366051 (D.C. Cir. 2010), and rehearing en banc was denied on December 15, 2010. The appellate decision reviewed the contentions in detail, and concluded that summary judgment was properly granted in OPM's favor because Complainant's proffered evidence was insufficient to make out a prima facie case of either disparate impact or disparate treatment discrimination. Following resolution of the civil action, Complainant filed a petition to reopen the underlying administrative complaint, alleging that OPM had failed to comply with the relief originally ordered by AJ in 2001, and had engaged in repeated fraud and deceit in the administrative and court processes. By decision issued July 11, 2012, the Commission denied the petition to reopen, holding that Complainant's allegations regarding OPM's alleged non-compliance and fraud were fully litigated in the federal district court. * * * v. Office of Personnel Management, EEOC Appeal No. 0520120172 (July 11, 2012). The Commission further noted that that record, and the district court's conclusions, were reviewed and affirmed on appeal by the D.C. Circuit and a final judgment rendered, and that Complainant had not alleged or adduced evidence of any circumstances warranting reopening of her administrative complaint. Id. B. The Instant Retaliation Complaints and Appeals The relief phase that followed AJ 1's November 2000 discrimination ruling in Complainant's original EEO case -- during which time he allowed discovery and other proceedings that led to his July 29, 2001 relief order -- overlapped in time with proceedings that were occurring in a non-EEO class action matter before the Merit Systems Protection Board, Azdell, et al. v. Office of Personnel Management, Docket No. 300A-97-0368-C1. Pursuant to an October 20, 2000 order in the Azdell case, OPM was in the process of recalculating and "rescoring" all of the candidates on the ALJ register since 1996 to determine appropriate priority consideration for class members harmed by the prior scoring formula. Complainant was not entitled to priority consideration under the Azdell order because she was not a member of that class. Complainant received a notice (as did all the other candidates on the ALJ register) in early March 2001, advising her of her new score, which was lower as a result of the priority consideration given class members. As a result of the Azdell litigation and MSPB's order that OPM rescore ALJ candidate rankings, there was a period of time during which agencies needing to hire more ALJs could not obtain certificates of eligibles from OPM to fill their vacancies. SSA uses a very large number of ALJs compared to other agencies due to its administrative hearings work, and by Fall of 2000 had a considerable need for new ALJ hires due to growing workload, attrition, and its inability to obtain a certificate due to Azdell. The record reflects that OPM had various communications with SSA and the other agencies about the status of the Azdell rescoring, keeping them updated because the agencies were anxious to know when they would be able to begin once again obtaining certificates of eligibles. At this time, OPM Counsel 1 was serving as counsel defending OPM in Complainant's original EEO matter, which was in the relief phase before AJ 1, In addition, OPM Counsel 1 was representing OPM in the Azdell matter before the MSPB. OPM Counsel 2 was on a detail serving as the acting deputy director of the OPM office that oversees the ALJ program. On January 19, 2001, SSA submitted a written request to OPM for a certificate of eligibles. SSA's January 19, 2001 request sought a certificate to fill 60 ALJ positions in 55 different geographical locations, including Washington, D.C. On February 2, 2001, SSA sent an amended request to OPM, with a revised list of geographical locations and vacancies. The amended request made a number of changes with respect to SSA Region III: it corrected "Florence, South Carolina" to read "Florence, Alabama"; it eliminated Harrisburg, Pennsylvania, Norfolk, Virginia, Roanoke, Virginia, and Washington, D.C.; it added two vacancies in Morgantown, West Virginia, and one additional vacancy in both Huntington, West Virginia, and Johnstown, Pennsylvania; and it made a variety of other additions or deletions of geographic locations or number of vacancies in a given location. In total, SSA removed approximately 12 locations and added 14 others. On or about March 8, 2001, OPM notified all Chief ALJs at the agencies that OPM had completed the recalculation of scores in Azdell and was now able to issue certificates of eligibles. On March 12, 2001, SSA submitted another request to OPM for a certificate of eligibles, and in response OPM issued a certificate to SSA on March 14, 2001. The certificate had 480 names, and Complainant was not one. The 480th eligible on the certificate had a rating of 82. At that time, Complainant's rating had been lowered to 77.2 due to the Azdell rescoring/class priority consideration. Hearing Transcript (ITT) 3/1/11 at 424; HT 3/2/11 at 944 (Complainant's score went back to its original higher level in 2003 when OPM ultimately prevailed in Azdell and the prior order was reversed).1 Therefore, OPM did not reach Complainant's name for inclusion on the certificate issued to SSA. Over OPM's and SSA's objections, on April 12, 2001, MSPB imposed a stay directing OPM to "withdraw and hold in abeyance" the certificate issued to SSA on March 14, 2001, because of a dispute about whether other steps to approve the rescoring were required by the Azdell relief order before OPM began to issue certificates. Subsequently, by opinion and order in Azdell dated September 21, 2001, the MSPB lifted the stay in part, and SSA proceeded to make appointments from the March 14, 2001 certificate. In total, it hired 120 new AUs, none of whom were assigned to the Washington, D.C. office. See Deposition of SSA Associate Commissioner at 11-12. Meanwhile, Complainant was seeking discovery from OPM in the relief phase of * * * I before AJ 1, who ultimately issued his relief rulings in Complainant's favor on July 29, 2001. As part of the discovery, OPM produced copies of various certificates of eligibles. During a May 4, 2001 conference with AJ 1, OPM Counsel 1 represented to AJ 1 that the March 14, 2001 certificate had been withdrawn and therefore did not have to be produced. As discussed later in this decision, this and other many other actions by OPM are alleged by Complainant to have been false statements and acts evidencing a retaliatory intent to keep her from being included on a certificate of eligibles, or from obtaining information relevant to learning whether agency wrongdoing had occurred. Following EEO counseling and issuance of a notice of right to file a formal complaint, Complainant filed an EEO complaint against SSA on July 11, 2001, and against OPM on August 9, 2001, and these are the consolidated complaints before us now. Complainant alleges she was subjected to retaliatory collusion by OPM and SSA for her prior EEO activity (the underlying discrimination complaint and proceedings referenced above) when, on February 2, 2001, SSA rescinded its January 19, 2001 request for a certificate of eligibles so as to delete Washington, D.C. Complainant alleges that although at the relevant time she was on record as an ALJ candidate with a nationwide availability, OPM was under a misimpression at that time that Complainant was only listed as seeking a position in Washington, D.C, and therefore that OPM caused SSA to amend its certificate request in a retaliatory effort to deny her from being included. Moreover, Complainant alleges, it was widely known among OPM officials at the time from the underlying litigation that Complainant's strong preference was to be considered for a position in Washington, D.C. Following the agency investigation, Complainant requested a hearing before an AJ, who granted summary judgment for OPM. On appeal, the Commission vacated the summary judgment, and remanded for a hearing. * * * v. Office of Personnel Management, EEOC Appeal No. 0120043834 (July 26, 2007), request to reconsider denied, Request No. 0520070887 (March 6, 2008). The Commission ordered that, on remand, the complaint against OPM be consolidated with a parallel complaint against SSA arising out of the same alleged incident, which had also been remanded for a hearing. See * * * v. Social Security Administration, EEOC Appeal No. 01A32052 (Jan. 3, 2005). The SSA and OPM complaints were consolidated on remand, and discovery proceeded. On March 10, 2010, AJ 2 issued an extensively documented 28-page decision on Complainant's motion for sanctions. While AJ 2 rejected some of Complainant's contentions, he did impose sanctions on both SSA and OPM for engaging in misconduct to thwart the development of the record. Contrary to Complainant's contentions that SSA breached its duty to develop a fair and appropriate ROI, AJ 2 found that SSA's investigation of her EEO complaint of reprisal was an "impartial and appropriate" factual record consistent with the agency's obligations under 29 C.F.R. § 1614.108(b). Rejecting myriad allegations by Complainant that SSA intentionally failed to gather, correctly analyze, or disclose all relevant information in the investigative or discovery phase,2 AJ 2 also denied Complainant's request for an adverse inference sanction, stating it would "most likely result in a finding of reprisal against SSA," and would be "inappropriate" and "excessive" viewing the totality of the evidence. Yet, AJ 2 ruled that, as found by OFO in its January 3, 2005 decision, SSA during the early stages of the litigation was "largely non-responsive to [Complainant's] pleas for answers (e.g., relying on blanket assertions that discovery requests were too vague, overbroad, irrelevant, or unlikely to lead to admissible evidence - even though the rules of evidence are not even strictly followed in federal sector EEO proceedings)." Specifically, AJ 2 found that during discovery, SSA did not fully comply with the AJ's orders, untimely responded to discovery requests, and unjustifiably asserted that documents belatedly produced had only recently been discovered, resulting in delay (for example, a redacted copy of the March 12, 2001 certificate of eligibles was produced one day before a deposition, adversely impacting Complainant's ability to prepare for that and other depositions). In addition, AJ 2 ruled that the SSA representative was "unnecessarily confrontational with his voluminous use of objections throughout [OPM Counsel 1's] deposition." AJ 2 also ruled that OPM, like SSA, during discovery in the early stages of the litigation, improperly objected to what OFO ultimately ruled was "fairly standard discovery fare" going to the heart of whether the agency retaliated against Complainant (quoting * * * v. Office of Personnel Management, EEOC Appeal Nos. 0120053271, 0120053958, 0120043834 (July 26, 2007)). AJ 2 further found that OPM's representative improperly asserted privilege objections during OPM Counsel 1's deposition, and inappropriately passed a note to OPM Counsel 1 during her deposition. The AJ noted that "[a]lthough the note appears to consist of a 'smiley face,' it is inappropriate for such communications of any kind to occur during a deposition," because a symbol could constitute a code or otherwise be interpreted as coaching a witness. Finally, based on a review of both the audio recording and the written transcript of OPM Counsel 1's deposition, AJ 2 ruled that "on balance, [OPM Counsel 1] was unnecessarily confrontational during the deposition, and deliberately was argumentative or obtuse in responding to questions or arguing with Complainant." The AJ noted that OPM Counsel 1 interrupted Complainant on several occasions, engaged in "unnecessary fencing" with Complainant as to whether there was a finding of discrimination against OPM by AJ 1, and attempted to instruct Complainant about what the proper scope of her examination should be instead of asking agency representatives to contact AJ 2. Thus, AJ 2 stated in conclusion: After having reviewed the totality of this lengthy and contentious record, it is evident to me that the discovery process has been acrimonious, and nowhere was this more evidence than the behavior that occurred between Complainant and [OPM Counsel 1) during [Counsel 1's] deposition. Having reviewed the oral and written transcript of [the] deposition, both parties share some responsibility for what occurred during the deposition. However, viewing how litigation has progressed over the course of several years, and taking into account the misconducl by SSA and OPM summarized above, this Order makes clear that viewing discovery as a whole, both SSA and OPM's actions, inactions or delays have interfered with Complainant's efforts to ensure that the record is fully developed Accordingly, AJ 2 imposed the following sanctions: (1) OPM was precluded from filing any dispositive motions; (2) SSA's pending motion for summary judgment was denied; (3) a hearing was scheduled to be held at which OPM and SSA would be primarily responsible for ensuring, absent good cause, the presence of the relevant witnesses; and (4) OPM and SSA were ordered to produced in unredacted, unsanitized form for the AJ's in camera review all documents relating directly to the effort by both agencies to fill ALJ positions between November 2000 and September 30, 2001. The AJ's order provided that after the in camera review he would rule on which, if any, of the unredacted documents Complainant would be permitted to see. However, notably, AJ 2 rejected Complainant's motion to compel deposition responses from OPM Counsel 1 regarding OPM's compliance with AJ 1's * * * I remedial order, ruling that the information was not calculated to lead to the discovery of admissible evidence: [T]he subject of OPM's compliance with AJ 1's remedial Order is not at issue before me and has been litigated in other venues. See * * * v Office of Personnel Management, EEOC Appeal No. 0120043834 (July 26, 2007) (noting that the Commission no longer has jurisdiction over Complainant's arguments concerning relief because she filed a civil action); Menoken v. Whipple, 605 F. Supp. 2d 148 (D.D.C. Mar. 23, 2009) (finding, in part, that OPM fully complied with remedial Order resulting from prior administrative proceedings), [motion to reconsider denied], Menoken v. Berry, 2009 WL 4250625 (Oct. 30, 2009), aff'd, Menoken v. Berry, 2010 WL 4366051 (D.C. Cir. Oct. 13, 2010). As such, I do not have jurisdiction to compel discovery of such information when the issue related to the Agency's compliance with that remedial Order has already been decided in Federal District Court. Id. Complainant argues that these documents are relevant by framing the matter as a subsidiary but important question relevant to the credibility of what transpired between OPM and SSA vis- -vis the issuance of ALJ certificates. However, the gravamen of Complainant's claim stems from her allegations of reprisal by SSA and/or OPM that occurred sometime between January and March of 2001. [footnote omitted] Id. Although I previously granted Complainant some latitude during discovery in my prior Orders, ... I decline to expand discovery into areas that were decided in Federal District Court. Id. See also * * * v. Office of Personnel Management, EEOC Appeal Nos. 0120053271, 0120053958, 0120043834 (July 26, 2007) at n.8 (noting how OFO also did not authorize discovery concerning OPM's compliance with AJ 1's remedial Order). In February and March 2011, AJ 2 conducted a five-day hearing on Complainant's consolidated retaliation claims against SSA and OPM. The voluminous hearing record included extensive exhibits, including numerous deposition transcripts admitted in their entirety, as well as a hearing transcript of witness testimony and the parties' arguments numbering almost 1500 pages. On August 24, 2011, before AJ 2 had issued any decision on the pending in camera document review or any aspects of the merits, Complainant filed a "Notice of Withdrawal from Hearing Process." On September 12, 2011, the AJ issued an order deconsolidating the complaints and remanding the matter both to SSA and to OPM, directing each to issue a final agency decision (FAD). Under 29 C.F.R. § 1614.110(b), an "agency shall ... issue the final decision within 60 days of receiving notification that a Complainant has requested an immediate decision from the agency...." However, in this case, the AJ's order provided that "[a]s it may take me several days to deconsolidate the hearings record, prepare the hearings records for each agency and send them via mail, I note that the time period for issuing [a] FAD pursuant to the above-referenced regulation shall run from the date each agency receives the hearing record." Complainant objected to the AJ's September 12, 2011 order on various grounds, including that under § 1614.110(b) the 60 days should run from when the agencies received her withdrawal of the hearing request in August. By order dated September 23, 2011, the AJ rejected any such arguments, and confirmed that his September 12, 2011 order stood. SSA subsequently issued its FAD on December 2, 2011, finding no discrimination, from which Complainant filed a timely appeal, naming both OPM and SSA as respondents, However, OPM filed a motion to dismiss the appeal as "premature" because it was "in the process of preparing its FAD but ha[d] not yet issued" it. By order dated May 29, 2012, an interim appellate ruling was issued finding OPM many months beyond its due date for issuance of a FAD, and ordering that it issue a FAD with appeal rights within thirty calendar days, while Complainant's appeal from the SSA FAD was held in abeyance. On June 29, 2012, OPM issued its FAD finding no discrimination, from which Complainant noticed another timely appeal. We consolidate these appeals for joint disposition. Analysis A. Procedural Issues We first address the procedural issues raised in the instant appeals, including the parties' disputes regarding the production of the record on appeal, Complainant's request for appellate review of the AJ's rulings below on discovery, sanctions, witnesses, hearing exhibits, and other hearing-related matters, and Complainant's request for outside processing. 1. Review of Hearing-Related Matters Complainant contends in various of her filings that the sanctions ordered against OPM and SSA by AJ 2 were not severe enough given the AJ's findings of obstruction during the discovery process. She also argues that the sanction of a hearing actually unfairly operated to penalize her, because she "would have to find a way to fully meet my burden of proof without the discovery I was trying to get, and without the discovery I was wrongly denied, and without any remedial measures" to address the lack of the evidence the agencies were responsible to produce. By response filed December 14, 2012, OPM argues that because Complainant withdrew her hearing request, any hearing-generated documents are irrelevant to the instant appeal and cannot be relied upon. OPM further argues that if such extra-record documents are considered, then all the hearing exhibits and testimony should be considered, and that it is entitled to an opportunity to be heard on appeal as to those issues the HEOC deems relevant. As noted above, following the 5-day hearing on the instant claims against OPM and SSA before AJ 2, but prior to issuance of the AJ's decision, Complainant withdrew her hearing request. The agencies both objected, contending that 29 C.F.R. Part 1614 does not allow withdrawal of a hearing request after the actual hearing is held. Nevertheless, at Complainant's request, the AJ granted withdrawal, and remanded the matter to the agencies, directing both OPM and SSA to proceed with issuance of FADs. Because Complainant chose to withdraw from the hearing process, we decline to review on appeal the procedural rulings made by the AJ, or outstanding hearing matters that were pending at the time of her withdrawal. Arvizu v. Department of the Navy, EEOC Request No. 0520100598 (Dec. 17, 2010) ("The regulations found at 29 C.F.R. Part 1614 do not provide for interlocutory appeals of AJ decisions .... [I]f Complainant wished to challenge the ruling of the AJ, he should have remained within the hearings process, received a decision from the AJ, and appealed to the Commission following the Agency's issuance of a final order."); see also Lee v. Department of the Treasury, EEOC Appeal No. 0120110521 (Sept. 6, 2012) (where Complainant, by counsel, withdrew from the hearing process, alleging that both the AJ and the respondent agency had engaged in misconduct, appellate review of hearing-related matters was denied; "we find that when Complainant chose to withdraw her hearing request, she also chose to extinguish all outstanding hearing matters, including prehearing determinations and discovery"); Valdez v. United States Postal Service, EEOC Appeal No. 01A00196 (May 11, 2000) (in light of Complainant's withdrawal of hearing request mid-hearing, the Commission refused to consider Complainant's challenge to AJ's rulings on discovery, hearing witnesses, and exhibits; "Complainant cannot evade the prohibition on interlocutory appeals from AJ discovery rulings by seeking to withdraw her hearing request in order to obtain appellate review of a FAD only for purposes of obtaining reversal of the discovery rulings and remand for a hearing. Complainant has waived her right to a hearing, and we now review the FADs on the merits of Complainant's claims."). Therefore, we will not review on appeal Complainant's challenges to rulings by the AJ on discovery, sanctions, hearing exhibits, witnesses, or any other hearing-related matters, including for example whether the AJ's November 22, 2010 order granting sanctions against OPM was a proportionate or sufficient measure. Nor will we review the outstanding issues the AJ had taken under advisement and not yet ruled on at the time Complainant withdrew her hearing request, such as Complainant's requested access to unredacted documents produced to the AJ in camera by the agencies pursuant to his sanctions ruling. However, to the extent Complainant has argued that the agencies' actions and inactions in the administrative or hearing process may constitute evidence of retaliatory intent, we agree that any such evidence may be considered with respect to the merits. See, e.g., HT 3/1/11 at 359-60 (Complainant argues that OPM's failure to produce items of significance, or failure to produce them until the hearing, can support an inference of retaliatory intent on the merits of her claim). 2. Production of the Record on Appeal Complainant contends that the appellate record provided by the agencies is incomplete. Specifically, she filed a letter with the Commission's Office of Federal Operations (OFO) dated June 22, 2012, identifying 7 items that she asserted were missing and required for adjudication of these appeals. The agencies subsequently provided what they represented constituted all of these items except the following, which they object to providing and which remain outstanding: (1) the audio recordings of the depositions of OPM Counsel 1 and Counsel 2, who were substantive fact witnesses in the case; (2) the Sprint audiotape recording of a May 4, 2001 conference before AJ 1 on the original * * * I discrimination claim; and (3) unredacted copies of certificates of eligibles that were under in camera review by AJ 2 awaiting ruling on Complainant's request to view them at the time she withdrew from the hearing process. The agencies contend they do not have items (1) and (2), and that Complainant is not entitled to item (3). First, with respect to the audio CDs of the depositions of OPM Counsel 1 and Counsel 2, Complainant argues these are relevant because they are "the best evidence for purposes of appellate review of whether the AJ improperly denied Complainant a meaningful sanction for attorney misconduct that he conceded had disrupted her discovery."3 However, as noted above, because Complainant withdrew her hearing request, we will not review on appeal the sufficiency of the sanctions ruling. Second, with respect to the Sprint audiotape of the May 4, 2001 conference with AJ 1, Complainant asserted at the hearing below that the agencies wrongly failed to include the tape in the EEO record of investigation, just as she argues now that the agencies have erred by not including it in the record forwarded on appeal.4 In fact, Complainant brought a copy of the tape to the hearing, but refused to provide it to the AJ unless he would verify that it was not contained in the EEO record.5 After much discussion, at the end of the hearing, AJ 2 ruled that the transcript of the Sprint tape, but not tape itself, would be admitted into evidence, and Complainant kept her copy of the tape. HT 3/9/11 at 1419-20; see also 1104-11, 1450-55 (Complainant states she wants the content in one form or another in the record for the merits, and the AJ admits the transcript). In this exchange, Complainant made explicit that she requested (and obtained) admission of the transcript of the tape for substantive evidence on the merits, and was raising an argument about absence of the tape recording itself only to establish alleged non-compliance with the AJ's sanctions orders. HT 3/9/11 at 1451-54.6 Again, we will not review on appeal the sufficiency of the sanctions order, rulings on admission of exhibits, or other hearing-related matters. For the content of the matters asserted therein, the transcript of the May 4, 2001 AJ 1 conference contained in the appellate record is sufficient to address the merits of Complainant's appeal. Third, with respect to the unredacted copies of certificates of eligibles (that were under in camera review by AJ 2 awaiting ruling on Complainant's request to view them at the time she withdrew from the hearing process). Complainant argued at the hearing that the agencies should be sanctioned for not having produced these in discovery, and/or that they were not properly withheld because a privilege log either was not provided or was inadequate. AJ 2 ruled that he would defer the matter of whether or not these documents were relevant or should be admitted until it came up during the hearing or in due course thereafter. At the conclusion of the hearing, the AJ took this document production matter under advisement, and stated he would further consider it in conjunction with review of the transcript and other evidence, but Complainant withdrew her hearing request before issuance of any ruling. Thus, once again, we will not review on appeal a hearing issue regarding production of documents that was pending before the AJ at the time Complainant chose to withdraw her hearing request. Nevertheless, the agencies are incorrect in arguing that because the hearing request was withdrawn, the hearing record that was developed below cannot be considered by the Commission on appeal and that our review is limited to the items considered in preparation of the FAD. See Ryan v. Department of Justice, EEOC Appeal No. 0120062637 (Feb. 12, 2009) (Complainant withdrew her hearing request after 5-day hearing but before AJ issued decision; on appeal from FAD, a de novo standard of review was applied since there were no AJ findings of fact, but the full record was deemed available for appellate examination; "we have the voluminous hearing record and transcript available to review as we consider the issues"). One function of the hearing process is to supplement the Record of Investigation (ROI). EEOC Management Directive 110, Chapter 7. Accordingly, the nearly 1500-page hearing transcript (containing the testimony of OPM Counsel 1 and Counsel 2, among many other witnesses) as well as the pleadings, exhibits (including many deposition transcripts), orders and other items from the hearing record submitted on appeal by the parties addressing the merits have been reviewed in considering the instant appeals. 3. Motion for Outside Processing In a series of filings addressing these and other pending appeals, Complainant has requested that the Commission appoint an outside individual to adjudicate her appeals, and/or to hold all her pending appeals in abeyance pending her effort to seek review by an unspecified outside entity of these matters or of EEOC's handling of the matters. See, e.g., Complainant's "Motion for Outside Processing of Appeals and for Stay of Proceedings Until Such Processing is In Place" (filed Aug. 29, 2012); Complainant's additional filings addressing these and other issues dated September 24, 2012, and December 18, 2012 (with enclosure of pleading from the hearing process dated December 13, 2010). By an order entered in September 2012, the motion for stay of proceedings was denied, the parties were directed to complete the previously-ordered briefing schedule, and it was noted that Complainant's motion for outside processing remained pending. With the record on appeal now complete, we address this issue. Complainant has raised dozens of arguments for outside processing, and we do not recite them all here, but they have all been reviewed and considered in detail. Among other things, she alleges that various former and current Commission officials and staff may have pre-judged her various EEO claims, had conflicts of interest with respect to issues and arguments in the case, engaged in ex parte communications with OPM, and committed other improprieties. She also alleges that the prior decisions issued by the Commission in her various appeals have been incorrectly decided and not based on a proper review of the record, and that she will not obtain a fair and impartial adjudication from the Commission in the circumstances. After due consideration, we deny Complainant's request for outside processing of the instant appeals for two reasons. First, the allegations of conflicts of interest or bias are purely speculative and contain insufficient basis in fact. Second, in this case, EEOC is not the respondent. Even in cases in which the EEOC is the both the respondent agency and the adjudicatory authority, the Commission does not, as Complainant seeks here, recuse itself from the appeal. "Where the EEOC is the respondent agency, in accordance with Commission policy, the case is assigned to an independent contract Administrative Judge not employed by the Commission," Logan-King v. EEOC, EEOC Request No. 05A10082 (Jan. 3, 2002), but then any appeal is decided by the Commission, with only the Chair recused. Complainant seeks to have her case treated differently even than those matters in which EEOC itself is the respondent. Complainant has failed to adduce evidence demonstrating that outside processing of these appeals is warranted. We note that, in an abundance of caution, the Commission has taken steps to avoid even the appearance of impropriety. Because Complainant works in OFO, which staffs the Commission's federal sector adjudicatory function, substantive staff duties with respect to adjudication of her complaints have been delegated to other offices to avoid even the potential for a conflict of interest or the appearance thereof. This matter can be, and has been, impartially adjudicated using the same procedures available to all other Complainants. B. Merits 1. Statement of the Issue In her closing argument at the hearing, Complainant characterized her retaliation claim as "whether OPM, with the active and willing assistance of SSA, manipulated the ALJ certification process in 2001 in a manner designed to ensure [Compainant] would not receive equitable relief as a result of her status as a prevailing party in a 1994 discrimination complaint against OPM." HT 3/22/11 at 702. This is a different statement of the claim than was articulated by AJ 2 without objection at the outset of the hearing, consistent with the EEO complaint record and pre-hearing rulings, as follows: Against the Office of Personnel Management, the Agency as set forth in its acceptance letter dated August 30th, 2001, states: 'In your complaint you allege that the Office of Personnel Management, OPM discriminated against you on the basis of reprisal. You stated that on February 2nd, 2001, the Social Security Administration rescinded its January 19, 2001 request for a certificate of eligibles to fill an administrative law judge (ALJ) vacancy in Washington, D.C. You further stated that it is your desire to be considered for an ALJ position in Washington, D.C, and that has been a major issue in your previous complaint, No. 94-25.' That is the accepted issue in the OPM Report of Investigation found in Exhibit 9, page 1, In the Social Security Administration case, the SSA case, the acceptance letter dated July 30, 2001, found at Exhibit 3, page 1, states as follows: 'You claim that your participation in a protected activity, EEO complaint filed against the Office of Personnel Management, was unlawfully considered when on or around February 2nd, 2001, SSA decided not to use the ALJ register to fill an ALJ vacancy in Washington, D.C During the prehearing conference the parties agreed that the last sentence of that paragraph talking about non-selection would be stricken from the accepted issues read today on the record at the hearing. As I noted previously, these cases have been joined for processing by the Office of Federal Operations as set forth in my order dated May 6, 2009. As set forth in footnote 2 of my order dated February 15, 2011, Complainant alleges, in essence, a conspiracy between representatives of SSA and OPM to manipulate the ALJ certificate process to preclude her from being considered for a position. Complainant, however, need not show a conspiracy in order to prevail. It will be Complainant's burden to establish by a preponderance of the evidence that either or both SSA or OPM retaliated against her. HT 2/28/11 at 7-8. As we have previously ruled per the decisions cited extensively in the procedural history above, Complainant cannot re-argue whether OPM complied with the relief ordered by AJ 1 in * * * I, because she chose to file a civil action on that matter. Moreover, the U.S. District Court and the U.S. Court of Appeals for the D.C. Circuit have already ruled that OPM complied with the relief ordered, and we do not revisit that finding. The Commission previously ruled that the instant EEO complaints could proceed specifically because they raised a distinct issue of whether there was a retaliatory change made to the SSA's request for certificate of eligible to drop Washington, D.C. in order to avoid Complainant's chance of selection. This is the issue before us. Facts from the discrimination case and compliance matter may be considered in the instant retaliation case as relevant background evidence of retaliatory intent. The AJ granted Complainant latitude to introduce all manner of evidence and argument regarding the compliance matter, and we have considered everything in the record accordingly.7 However, we see no grounds to depart from the usual rules regarding preclusion, irrespective of Complainant's arguments regarding our discretion to do so. 2. Standard of Appellate Review and Applicable Law Had an AJ decision been issued in this case, factual findings would have been subject to a more deferential standard and upheld if supported by substantial evidence. However, due to Complainant's withdrawal of her hearing request before the issuance of a decision, there are no factual findings by the AJ, and we therefore conduct our entire review de novo. To prevail, Complainant must prove by a preponderance of the evidence that (1) she engaged in protected activity; (2) was subject to a materially adverse action; and (3) there was a causal nexus between the two. The causal nexus requires a showing that retaliation for her prior protected activity more likely than not caused the challenged actions by SSA and OPM.8 While the causal connection may be proved directly by evidence that on its face shows or admits retaliatory motive, it is more typically demonstrated by what one appellate court has described as a "convincing mosaic" of circumstantial evidence that would support the inference of retaliatory animus. Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013) (citation omitted). The pieces of that "mosaic" may include, for example, suspicious timing, verbal or written statements, comparative evidence that a similarly situated employee was treated differently, falsity of the employer's proffered reason for the adverse action, or any other "bits and pieces" from which an inference of retaliatory intent might be drawn. Id. "The law is well-established that the internal inconsistencies, implausibility, or contradictions in an employer's explanation of the challenged employment decision may be evidence of pretext for discrimination or retaliation." Conroy v. Vilsack, 707 F.3d 1163 (10th Cir. 2013) (quoting Rivera v. City and County of Denver, 365 F.3d 912, 925 (10th Cir. 2004) (finding that inconsistencies among panel members' recollections of the rating system used for the selection process was insufficient to demonstrate pretext)), 3. Arguments on Appeal Both SSA and OPM have filed appellate briefs on the merits. Among other things, SSA argues that there is no evidence the individuals at SSA who were involved in requesting the amended certificate knew about Complainant's prior protected activity. SSA also argues that there is ample contemporaneous documentation demonstrating the legitimate, non-retaliatory motivation for requesting an amended certificate to correct errors in the first request. OPM argues that there is no evidence to support Complainant's contention that OPM officials discussed with SSA any particular locations, caused SSA to file an amended request, or otherwise acted to prevent Complainant from being listed on a certificate issued to SSA. After being granted the extension of time she requested for filing a brief on the merits once both agencies' FADs were issued, Complainant did not file a brief on the merits.9 However, she did assert in one of her other appellate filings that her closing argument at the hearing, HT at 3/22/11 702-48, contained her arguments on the merits, and therefore we will consider all of those factual and legal arguments as such. Complainant's arguments, inter alia, include the following: --In the relief phase of the * * * I proceeding before AJ 1, OPM was required to prove by clear and convincing evidence that even absent the unlawful scoring benchmark, Complainant would not have been on any ALJ certificate issued in her area of geographic availability.10 She argues that at the December 12, 2000 status conference, OPM Counsel 1 acknowledged that Complainant had been on record in OPM's ALJ office as available for all geographic locations since 1997, yet OPM Counsel 1 argued to AJ 1 that Complainant should be bound by statements suggesting Complainant's availability was limited to Washington, DC during and after 1999, and therefore was only listed available for "all areas" from 1997 until the time she received the benchmark in 1999. AJ 1 replied that it would be "sorted out through the relief vein fact finding process." --On October 20, 2000, in a then-pending non-EEO class action matter before the Merit Systems Protection Board (MSPB) regarding the ALJ examination, Azdell v. Office of Personnel Management, the MSPB invalidated the formula used to calculate final scores on the ALJ examination, and ordered OPM to recalculate the scores within 90 days. The SSA Associate Commissioner testified that given that ALJ hiring had been held in abeyance for some period of time, SSA was "very encouraged that they would be able to submit a certificate request in 90 days." Hearing Exhibit C-2. According to the Associate Commissioner, SSA immediately commenced its usual procedure, preparing a certificate request, including consulting regional judges, considering the transfer list, confirming space availability, and assessing workload needs. The SSA Chief ALJ testified that OPM Counsel 2 told him there would be "window of opportunity" for SSA to hire from the ALJ register. --On January 16, 2001, OPM requested in the Azdell case that MSPB grant an extension of time until June 29, 2001, for OPM to finish its reconstntction of the ALJ register. Complainant argues that this date was deliberately selected by OPM because it coincided with the exact date that AJ 1's EEOC appointment was set to expire in the * * * matter. Complainant argues that one can infer from the date selected that one of OPM's goals was to avoid raising any expectation, other than on thepa of SSA, that ALJ certificates would be issued prior to June 29, 2001, when the * * * hearings process would be concluded. --On January 19, 2001, SSA forwarded a request for a certificate of eligibles. A day or a few days beforehand, an SSA HR specialist telephoned OPM Counsel 2, who at the time was serving a detail as the acting deputy director of OPM's ALJ office, and told him that SSA would soon be submitting an ALJ certificate request. OPM Counsel 2 testified that he could not dispute this, and that he said nothing in response to discourage SSA from submitting its request. Complainant argues that OPM Counsel 2's silence in the face of being told that an SSA certificate request was coming supports an inference that SSA had timely seized the "window" that OPM Counsel 2 had mentioned to the SSA Chief ALJ. She also argues that the SSA HR Specialist's testimony about this telephone call with OPM Counsel 2 supports an inference that OPM had recalculated the Azdell scores by January 2001, notwithstanding what it told the Board it needed to do and why it needed a 5 month extension. --On or about January 19, 2001, the SSA Chief ALJ prepared a certificate request which included among the listed locations Washington, D.C, and the SSA HR Specialist immediately submitted the request to OPM. A day or so prior to February 2, 2001, she states that she called OPM to advise that SSA would soon be submitting an amended certificate request, and she says no one from OPM discouraged her from proceeding. The SSA Chief ALJ submitted the amended request to OPM on February 2, 2001. Among other changes, the amended request deleted Washington, D.C. as a location for which SSA needed to hire ALJs. Complainant argues that SSA arranged to drop Washington, D.C. based on a conversation with OPM. In support of this inference, Complainant relies on affidavit testimony by the SSA Associate Commissioner stating that she was "aware that discussion about the D.C. location may have occurred between OPM and SSA in 2001."11 --The SSA Chief ALJ gave testimony in a 2002 arbitration hearing, the transcript of which is in the hearing record in the instant case, which Complainant argues suggests that OPM told SSA to request an amended certificate deleting Washington, D.C. The statement at issue, referring to OPM, is: "1 don't know the consequences because we tried to comply with what their request was. Probably has something to do with the fact that there are a lot of people on the register who want to go to Washington, D.C. If we gave somebody an edge, we wouldn't be playing fairly." Complainant argues that this demonstrates that OPM told SSA to amend its request to delete Washington, D.C.12 --On January 30, 2001, as part of the * * * I relief phase, Complainant submitted a discovery request to OPM seeking, among other things, information on communications between OPM and any agency regarding the efforts to hire ALJs in 2001. Complainant argues that sometime after February 2, 2001, OPM Counsel 2 "directed SSA to submit another cert request but not before March 12, 2001." --The SSA HR Specialist testified in her deposition that the SSA Chief ALJ told superiors in Baltimore that he was going to wait until March 12, 2001, in accordance with OPM Counsel 2's instructions, before he asked for a certificate from OPM. Complainant argues that "while [OPM Counsel 2] was urging SSA to hold off until March 12th, [OPM Counsel 1] was arranging for [production of] remaining ALJ certificates in the * * * relief proceeding to be produced on a weekly schedule that would end on March 12th." Complainant cites letters OPM Counsel 1 wrote to AJ 1 memorializing status conference discussions reflecting that March 12 was the deadline for producing certificates in the relief proceedings. Complainant argues: "Since it is unlikely to be a coincidence that [OPM Counsel 2] and [OPM Counsel 1] were both focused on March 12th at the same time, it may be inferred that OPM wanted the * * * evidentiary record closed before responding to SSA's cert request." --OPM Counsel 2 verified a supplemental discovery response acknowledging that he originally failed to disclose that OPM had issued a certificate of eligibles to SSA on March 12th. OPM Counsel 2 stated that he had not included the information on advice of counsel, which Complainant argues is evidence of the retaliatory intent of OPM Counsel 1. Similarly, Complainant cites OPM Counsel 2's deposition testimony acknowledging that he was instructed by OPM's General Counsel (again, she argues this must be OPM Counsel 1) not to list communications OPM had had with other agencies when responding to an interrogatory asking for same. Complainant argues that this is evidence of purposeful evasion and hence retaliatory intent by OPM Counsel 1, rather than a litigation judgment regarding what information was required as responsive. She also argues that OPM never amended the interrogatory answer to provide the requested information in writing. --OPM Counsel 1 told AJ 1 that the reason the March 12th certificate of eligibles issued by OPM to SSA was not produced as part of the relief phase is that SSA was not using the certificate because it had been "withdrawn" by OPM. Complainant asserts that this was a misrepresentation, and that there is evidence in the record showing that OPM Counsel 1 had been receiving regular reports throughout April 2001 regarding SSA's progress in making selections from that certificate, including a report on April 23, 2001, just 11 days before she told AJ 1 on May 4, 2001 that the certificate was not being used. At the same time, Complainant contends, OPM was breaching discovery obligations and concealing information about its January, February, and March communications with SSA, and SSA failed to respond in a timely fashion to Complainant's FOIA request seeking basically the same information, taking five months to provide its first response. In addition, SSA did not produce or acknowledge the February 2, 2001 certificate request in response to her FOIA request until after Complainant specifically told them she was aware it existed. Complainant argues that the record contains uncontested testimony that her FOIA requests were held up in the SSA ALJ program headquarters. She also argues that because of SSA's handling of her FOIA request and these other circumstances, a finding can be made that SSA was aware of her protected activity in 2001. In addition to the above, Complainant argues that OPM attorneys allegedly engaged in overreaching and manipulation. Complainant invokes Kaiser v. Office of Personnel Management, EEOC Request No. 05950289 (Nov. 7, 1996), in which EEOC permitted to proceed a retaliation claim based on allegations that an attorney in OPM's counsel had placed a hold on a Complainant's disability retirement application after he raised issues relating to OPM's alleged breach of a settlement agreement in a prior EEOC matter. Complainant also cites Hassenfeld-Rutberg v. United States, 112 F. Supp. 2d 77 (D. Mass. 1998), in which an OPM ALJ alleged that OPM tried to deny her relocation priority in accordance with its regulations. Complainant introduced evidence in the instant hearing record about a 2001 Providence vacancy that could have related to relief in the Hassenfeld-Rutberg matter, and, according to the SSA Human Resources Specialist, was a topic of "discussion" between OPM and SSA. The SSA Human Resources Specialist testified that at her deposition she was told by OPM to take the plaintiff in that matter off the vacancy list, and according to Complainant's testimony, this was not made known to the plaintiff or her counsel. She also notes that the plaintiff was provided a retirement adjustment as part of her settlement, whereas Complainant was told in her case that that could not be ordered by any judge. Complainant also contends that one of the witnesses who appeared at the hearing to testify on her behalf (a former OPM attorney testifying about alleged past OPM wrongdoing) was "treated like some kind of criminal" and subjected to "the embarrassment of being followed around by two security guards." She also cites as evidence of retaliatory intent that OPM told this witness that his appearance might cause OPM to bring up his 15-year old disciplinary record to impeach him, which he had previously been told had been purged. Complainant also argues that OPM's actions with respect to this individual at the time of his own employment disputes with OPM is further evidence of OPM Counsel's capacity for retaliatory actions. Complainant additionally argues that "OPM had no respect for the discrimination finding that [AJ] 1 entered in my case, so much so that it undertook to mislead EEOC and the court into believing it had stopped discriminating against African-American ALJ applicants when in fact it had not and never intended to." In particular, Complainant cites OPM Counsel 1's testimony that the discriminatory scoring benchmark was not used to score any ALJ applicant's supplemental qualifications statement (SQS), which Complainant asserts is contradicted by an agency record that showed otherwise (Exhibit C-4). She also relies on testimony by an OPM Human Resources Specialist then working in the OPM Office of ALJs that the benchmark was used not only in the SQS but also in the PRI part of the examination as well. Complainant notes that in the district court proceeding regarding compliance, OPM asserted it was permitted to continue to use the benchmark for the PRJ, since AJ 1's order only mentioned the SQS. Further, Complainant cites a number of merits-related processing issues that she argues reveal retaliatory intent on the part of the agencies. In particular, she cites OPM Counsel 1's testimony admitting that OPM did not post the discrimination findings in her case as required, and OPM's failure to identify or produce other findings that OPM Counsel 1 also suggested were erroneously not posted. She also contends OPM failed to include certain documents in the ROI, and asserts that OPM concedes deleting certain e-mails from Complainant, including communications with the EEO Counselor that would demonstrate an alleged counseling delay. Similarly, she points to some e-mails she wrote to the investigator regarding the investigation process that were not included in the ROI. She further contends that the investigator did not later follow the process he described to her when he took her statement. In addition, she asserts the agency investigations were flawed because the investigators did not ask witnesses the questions Complainant proposed, and that in some instances an investigator suggested to witnesses that particular points be included in rneir affidavits, since they had told him they had knowledge of the matters and they were relevant to the issues raised in the complaint. See, e.g., Deposition of SSA Human Resources Specialist at 84-85 (EEO investigator suggested that she include in her affidavit information about whether or not Complainant was included on the March 14, 2001 certificate since that information was within her knowledge). Complainant argues that even though her motion for sanctions against SSA for alleged material deficiencies in its ROI was denied, these alleged deficiencies are proof of the merits of her retaliation claim. She argues that the ROI reflects "SSA's deliberate failure to develop evidence during its investigation that goes to the very core of the claims asserted in this case, which are communications between SSA and OPM regarding SSA's decision to drop Washington, D.C. from the January 19, 2011 cert. request." In denying the sanctions motion, the AJ found SSA's ROI sufficient, and noted that nothing requires an investigator to pursue information simply because a Complainant believes is important. Complainant contends that the allegedly missing information was in fact important, and would support an inference of retaliatory intent by SSA because its investigator "deliberately" chose not to ask certain key SSA officials -- such as the SSA Human Resources Specialist and SSA Chief ALJ -- about communications between the two agencies on this subject. While both of these individuals testified at the hearing, and Complainant and her counsel had ample opportunity to question them, Complainant argues that SSA's retaliatory intent is revealed by its EEO investigator's decision not follow up with these witnesses after being told by the SSA Associate Commissioner that she was aware the D.C. location may have been discussed with OPM during the relevant time period. Complainant argues: "It is particularly appropriate to consider a party's behavior where honesty and integrity lie at the core of the claims in the complaint. The way these agencies conducted themselves when they had full control over the processing of these claims calls into question whether the self-serving information in their ROIs is worthy of any credence at all." In particular, she points to the fact that the SSA Chief ALJ testified at the hearing when shown the excerpted transfer list from SSA's ROI that it did not reveal how many other locations those individuals requesting transfer to Washington, D.C. were also trying to go to at the same time, and how many times they had turned down any of the other locations. She also slates that the complete list no longer exists. With respect the contemporaneous e-mails supporting its non-retaliatory reasons for amending the initial request for a certificate of eligibles to delete Washington, D.C., Complainant argues: "If you look closely at those e-mails, the e-mail that came from the [SSA Director, Division of Field Operations and Liaison (SSA Division Director)], it reads like a script." She questions why the e-mail states that SSA had "hastily" put together its first request when they had 90 days to do it, and SSA Associate Commissioner testified they took all the usual steps during that time. Complainant therefore asserts that the e-mail was "manufactured to create a paper trail for the defense." Relatedly, Complainant objects to certain rulings on witnesses with respect to the persons who would have knowledge of these issues, and to the exclusion of evidence at the hearing regarding OPM's alleged failure to comply with the Commission's remand order. She adds: "It's not a coincidence that the information missing from OPM's interrogatory responses is exactly the same information that SSA chose not to pursue in its investigation, the communications between the agencies regarding SSA's decision to drop Washington, D.C. from its January 19th request." Complainant also argues that there was prejudicial delay in this case, in that with appeals, remands, and the discovery process, the AJ hearing on this EEO complaint took place nearly 10 years after it was filed. In particular, she alleges that she was harmed by the delay of almost five years in getting rulings on her discovery and sanctions motions filed in early 2006, since in the interim "key SSA officials retired." She also asserts that in a late 2005 telephone conference, she expressly urged the AJ to address SSA's alleged discovery misconduct immediately because of her concern that further delay would result in the unavailability of witnesses who were eligible to retire. She asserts that only the SSA Chief ALJ was available by the time of the hearing to testify live, and that "[a]s his performance has demonstrated, his recollection of events was clearly limited." She therefore argues that the sanction awarded by AJ 2 against OPM of holding a hearing was "really something that unfairly operated to penalize me." She also argues that the AJ's evidentiary rulings were "hyper technical" and that she "did not feel like the hearing was designed to search for the truth." Complainant asserts that the relevant findings in the federal district court and D.C. Circuit decisions finally deciding her original discrimination claims, such as that the OPM complied with providing the relief ordered by AJ 1, should not preclude her from arguing factually and legally to the contrary now, because she says the courts were looking for direct evidence, and overlooking the inferences that could be drawn from the indirect evidence. Complainant asserts that when she tried to raise the instant matters in the relief phase before AJ 1 in May 2001, he advised her that she should instead file a separate reprisal claim, and that he "all but said" that if her allegations were true, a finding of reprisal is warranted. Complainant argues that because there has been a hearing, it would be improper to analyze the case in terms of the burden-shifting method of proof, examining whether a prima facie case was established or a legitimate non-discriminatory explanation was articulated (which she does not think was). Rather, she asserts, a hearing having been held, "the trier of fact simply decides whether it's more likely than not that the articulated reasons are true, and if not, whether it's more likely than not that reprisal was a true reason." HT 3/22/11 at 742. She asserts that this finding of reprisal in this case can be made "simply on the basis that the agencies' witnesses were dishonest in their testimony." Id. Complainant also cites six cases that she argues are relevant to any decision in this case: • Blonder-Tongue Labs, Inc. v. Univ. of Illinois Foundation, 402 U.S. 313, 334 (1971) (cited in support of Complainant's argument that collateral estoppel shouldnot be applied to the district and appellate courts' findings of compliance in the * * * I matter, because it is a an equitable doctrine, not a jurisdictional one, and that it is only appropriate to invoke the preclusive effect of the doctrine if it furthers the interest of justice and equity). • Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000) (cited in support of the proposition that an employer's mendacity can support a finding of pretext, with respect to what Complainant characterizes as an undisputed record of OPM Counsel 1 and 2's false and misleading discovery responses, and OPM Counsel 1 allegedly deliberately misleading AJ 1 about the status of the March 12th certificate). • Burlington Northern v. White, 532 U.S. 53 (2006) (retaliation need not involve a specific employment action). • Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011) (cited for the proposition that an employer can be found liable for acts influenced but not carried out by the individuals motivated by retaliatory animus; Complainant argues that "OPM's liability automatically established SSA's liability because SSA's actions in 2001 were clearly influenced by OPM. In fact, OPM acted as though it was the boss of SSA. SSA did whatever OPM told them to. That's well documented in this record."). • Henry v. Wyeth, 616 F.3d 134 (2d Cir. 2010) (cited for the proposition that an employer can be held liable for retaliation even if a specific decision maker was unaware of an employee's protected activity, provided there is institutional knowledge of the protected activity; therefore, Complainant contends, she did not need to prove any specific SSA employee was aware of her protected activity, and that it is "sufficient to show through circumstantial evidence that the agency was on notice that I was in litigation against OPM"). • Monroe v. Navy, EEOC Request No. 05950248 (April 8, 1996) (cited for the proposition that deviation from standard procedures without explanation or justification are subject to heightened scrutiny and may be sufficient to demonstrate pretext). Complainant contends the testimony of the OPM Human Resources Specialist, among others, "supports a finding that it was an irregularity for [OPM Counsel 2] to instruct SSA to remove [a plaintiff in another case] from the cert. [and that] normally OPM doesn't get involved in location. Yet there they were, involved in the Providence location heavily." She contends it was therefore a departure from standard procedure for SSA and OPM to have discussions about an ALJ location in another case, and this supports a finding that it is more likely than not that the agencies discussed D.C. in 2001, and that it must be similarly viewed "as a legally significant departure from standard operating procedure." 4. Discussion After a painstaking review of the voluminous record and all due consideration of the inferences Complainant argues can be drawn, we do not find the evidence establishes it was more likely than not that SSA's February 2, 2001 submission of an amended request for certificate of eligibles to OPM was motivated by retaliatory animus by either OPM or SSA.13 Rather, the ample documentary and testimonial evidence demonstrates that, more likely than not, SSA's January 19, 2001 request for certificate of eligibles was amended on February 2, 2001 for legitimate, non-retaliatory reasons. Contemporaneous e-mail communications among SSA personnel support their testimony that they themselves, for non-retaliatory reasons, decided to amend the January 19, 2001 request. SSA officials contend that they had a considerable need to hire ALJs, and were anxiously awaiting indication from OPM that the Azdell rescoring was complete and they could proceed.14 Undisputed evidence shows that SSA was under an extreme staffing hardship due to depletion of the ALJ ranks and was anxious to hire, especially due to a new legal requirement that Medicare cases had to be decided in 90 days. SSA knew that OPM had originally been given until on or about January 18, 2001 to comply with the Azdell relief, and contends that it submitted the January 19, 2001 request in a rushed attempt to pressure OPM to issue a certificate or to have its request in OPM's possession for the earliest opportunity available, which they thought might be imminent. See Deposition of SSA Associate Commissioner at 65-72, et seq. Without new input from the regions, they contend they used the November 2000 SSA survey regarding ALJ office space needs and available management information about workloads, and based on these sources of information included Washington, D.C. Id. (SSA did "quick" identification of sites based on November 2000 preliminary workspace survey done by SSA in anticipation of OPM beginning to issue certificates again). Several days later on January 24, 2001, the SSA Division Director sent an e-mail to dozens or more regional officials requesting their input for an amended certificate, stating as follows: As discussed on the conference call, we hastily prepared a certificate request and sent it to OPM on 1/19. You received a faxed copy just before the conference call. You'll recall that Judge [X] already noted an error that in that we listed Florence as SC rather than AL. We will send an amended request to OPM to fix that and have decided (after discussing with the Personnel Specialists who coordinate with OPM for us) that we will take the opportunity to make other changes to the numbers and locations as necessary. I think I noted on the call that what we used to identify the locations on the list was the information you sent us in December about space availability, and combined that with basic information about pending per ALJ levels in each HO, knowing that just those 2 items of info were insufficient to develop the list we really want. We also know, however, that there is still significant skepticism as to whether we will in fact be provided a certificate from this request. In any case, we figured why not take the next few days to eliminate any truly problemmatic [sic] locations on the list and include those changes with the amended list while we're changing Florence back to Alabama. To avoid raising any questions about the authenticity of the original request, we would like to keep the changes to a minimum. So we are asking that you only identify the truly problematic locations, and provide substitutes where possible, Please provide your comments and requested changes .... with a cc to your Desk Officer and me. Please provide your input by COB next Tuesday January 31 (sooner if possible) so we can issue the amended request by next Wednesday. A reply e-mail on January 26, 2001 from the SSA Regional Management Officer (RMO) in the Philadelphia Regional Office of Hearings and Appeals stated: In response to your request, we have ALJ needs in the following locations: Charleston WV 1 Huntington WV 2 Johnstown PA 2 Philadelphia E PA 1 Morgantown WV 2 Because we expect to have an ALJ assigned to Harrisburg, we do not need and [sic] ALJ in that office. Likewise, we have no need for ALJs in Washington, DC, Roanoke VA, and Norfolk. We would want to consider existing requests for transfers to these sites should we decide to fill a position in D.C. or Norfolk. We anticipate the HOCALJ vacancy for Roanoke will be external, thus adding another ALJ there. We are focusing our recruitment efforts for those sites which need ALJs and which are areas difficult to get ALJs to go to. If you have any questions, please feel free to call me. SSA's February 2, 2001 amended request submitted to OPM tracked these recommended changes. In addition to removing Washington, D.C., the February 2, 2001 amended request removed 10 other offices, added 13 different offices, and corrected Florence, South Carolina, to Florence, Alabama. In fact, the February 2, 2001 amended request asked for more ALJs altogether (71) than the original January request (which had requested only 62). The evidence also confirms that it would be unusual for SSA to recruit for the Washington, D.C. office through the OPM ALJ register because there is typically a waiting list of incumbent SSA ALJs who want to be reassigned to this location, and in November 2000 there were in fact nine pending requests by incumbent ALJs to transfer to Washington, D.C. HT 3/1/11 at 474-76. The evidence shows that at the time SSA submitted its January 19, 2001 request for a certificate of eligibles and its February 2, 2001 amended request, OPM could not take any action on the requests because it was still engaged in the rescoring ordered by Azdell. HT 3/2/11 at 769-771 (OPM Counsel 1 testimony that OPM Counsel 2 was told to call SSA to inform the agency OPM could not act on the January request because of Azdell rescoring). Complainant contends that all these other changes in SSA's request were made just as a pretext to cover up the deletion of Washington, D.C., which was intended for retaliatory reasons to exclude her from being included on any certificate of eligibles issued. As noted above, she argues that the SSA Division Director's e-mail "reads like a script" and was therefore likely "manufactured to create a paper trail to support the defense." HT 3/22/11 at 733-34. Complainant contends that in 1997 she changed her geographic preference to all areas; it had been listed as Washington, D.C. from 1993-97, and she alleges OPM was under a misapprehension that her D.C. preference remained in place. See, e.g., HT 2/28/11 at 155; HT 3/2/11 at 819-28.15 To the contrary, SSA's contention that it was acting quickly based on preliminary information such as its fall workspace survey is supported by the fact that the SSA Chief ALJ had sent a memorandum dated November 22, 2000 to all of his regional chief ALJs and regional management officers entitled "Survey of Available Space in Hearing Offices," which clearly indicated that this very information was being gathered as a preliminary or "first" step: Although subject to appeal or extension, the Merit Systems Protection Board's recent decision in the Azdell case opens the possibility that [the SSA Office of Hearings and Appeals (OHA)] could hire new ALJs later this fiscal year. Because the ALJ hiring process is a major undertaking involving extensive planning and coordination throughout OHA, we are moving ahead with preparations to be ready if and when we get an opportunity to hire ALJs. We will work closely with your staff over the next few months in assessing our ALJ needs relative to which offices need additional ALJs and which offices have more ALJs than the workload supports. Tentatively we hope to hire 120 new ALJs this FY. As a first step we would like for you to identify where there is available space in your offices for additional ALJs. From a planning perspective, we are asking for all existing available space knowing that there are locations with available space where another ALJ is not warranted .... We just need to know what space is actually available so we can determine whether we will be able to hire the ALJs we need within a narrow timeframe or whether we will have to await additional space to accommodate all of them and thus spread the hiring over a longer period. Memorandum from Chief ALJ dated November 22, 2000. This memorandum also confirms the testimony by SSA and OPM officials regarding the circumstances of SSA's anticipation of submitting a request for certificate of eligibles as soon as the Azdell rescoring was done, and the fact that the agencies were being kept apprised of and were closely following the status of the Azdell matter for this reason. See also Affidavit of the RMO for the Philadelphia Region, dated November 15, 2001 (attesting "I had no contact with anyone in OPM concerning our need, or lack of need, for a new ALJ in Washington or elsewhere," and explaining that she had responded to the November 22, 2001 inquiry, indicating physical space availability in the Washington, DC office and elsewhere, but when she received the SSA Division Director's January 24, 2001 e-mail asking for amendments to the January 19, 2001 request for certificate of eligibles, she responded as quoted above by e-mail dated January 26, 2001, explaining, among other things, that they would want to fill any vacancies in the Washington, D.C. and Norfolk offices by transfer); HT 3/1/11 at 474-75 (many ALJs sought to transfer to DC if a vacancy became available there). Regardless of whether or not Complainant thinks SSA pursued a wise or efficient method to gather relevant information about its hiring needs or to pursue obtaining a certificate of eligibles from OPM, she has failed to undermine the authenticity of this contemporaneous documentation evidencing a legitimate, non-retaliatory motive for amending the request on February 2, 2001. This evidence clearly supports SSA's contention that it hastily prepared the January 19, 2001 request based on incomplete information that took into account some, but not all, relevant region considerations regarding workloads, potential transfers, and other data, and then amended the request on February 2, 2001 to correct a variety of errors based on more detailed input from its regional staff. In addition, the fact that OPM did not act on either the January 19, 2001 request or February 2, 2001 amended request further supports the conclusion that SSA's requests were premature rather than coordinated with OPM. OPM Counsel 2 testified: "When it comes to, you know, a discussion that I recall having with [the] Chief Judge [J, when I did receive the certificate that was sent to us that's marked as Exhibit 21, dated January 19th, I was somewhat surprised by receiving that, because it was consistent within the ALJ community at large that we cannot issue a certificate until we comply with Azdell. I did not send out a notice to the ALJ community that we completed Azdell yet. So when we received this, I thought this was premature, and I called -- or the Judge called me or somehow we connected, and I said, this request is premature. Please wait until I issue the notice to all agencies. But, yes, Judge, I understand your concerns, and we're working really hard to get this completed." HT 3/2/11 at 708. See also OPM Counsel 2 affidavit (ROI Exhibit 15) (stating OPM Counsel 2 told the SSA Chief ALJ that SSA's February request was premature). Complainant also points to the agencies' actions after February 2, 2001 as evidence of retaliatory intent. She alleges that OPM Counsel 2, to retaliate against Complainant and/or to hide OPM's retaliatory actions, directed SSA to submit a third certificate request but not to do so before March 12, 2001. Complainant contends that OPM sought to control the timing in this way, so that it would not have to produce the certificate to Complainant as part of the then-ongoing discovery in the * * * I relief proceeding. She similarly alleges that OPM sought an extension until June 29, 2001 to complete the relief in the then-pending Azdell litigation, because on that date AJ 1's appointment was due to expire, and OPM hoped to hide actions relative to Complainant's rescoring. HT 3/2/11 at 866. She also argues the SSA Human Resources Specialist implied in her deposition that there was a communication with her supervisor about this, but it was not produced to Complainant in discovery. The evidence is at odds with Complainant's allegation that communications by OPM to SSA about when certificates would become available were for the purpose of preventing Complainant from being included on a certificate. It is true that the SSA Chief ALJ testified that OPM advised there would be a "window of opportunity" to request certificates. However, the evidence shows that, more likely than not, any OPM communications to SSA that it should wait until March 12th before submitting a certificate request were because of the expected time period for completing the rescoring. OPM kept all the agencies apprised of developments in Azdell, communicating frequently with the Chief ALJs regarding the status of the rescoring effort, which it ultimately estimated would be completed by mid-March 2001. HT 3/2/11 at 704-05 (OPM Counsel 2 had regular meetings with the Chief ALJs regarding the impact and status of Azdell in terms of when OPM could again begin issuing certificates of eligibles for hiring); HT 3/2/11 at 705-09 (OPM Counsel 2 sent a notice out from his office to all the agencies when reconstruction of the register was completed, advising the agencies they could now submit requests for certificates of eligibles). Once the rescoring was complete, the candidates on the ALJ register would be notified of their new scores, and OPM intended to begin issuing certificates of eligibles in response to agency requests. HT 3/2/11 at 779. OPM Counsel 1's view was that OPM was free to begin issuing certificates without any further approval by Azdell class counsel or the MSPB. The SSA Chief ALJ testified that SSA's January 19 and February 2, 2001 requests were a "shot in the dark," to "get in line," but that when they submitted the March 12th request it was in response to a communication from OPM that they could now proceed. HT 3/1/11 at 586-87. Based on SSA's March 12th request, OPM issued SSA a certificate on March 14th. See, e.g., HT 3/1/11 at 586-611 (SSA Chief ALJ describes circumstances surrounding March 12th request, and denies that OPM requested SSA delay making a request until March 12th); HT 3/1/11 at 245-46, 255, 291-93, 414-16 (discussion of Azdell rescoring); HT 3/2/11 at 772-76, 784, 862-65 (OPM Counsel 1 testifies on rescoring process and timeline); Exhibit O-11 (OPM letter alerting SSA to MSPB's order imposing stay); HT 3/2/11 at 908-917 (testimony regarding OPM Counsel 1's statements about the relief phase in Complainant's case occurring at the same time period). OPM later had to inform both SSA and another named agency that, because of a stay issued in Azdell, they could not use certificates OPM issued in March. HT 3/2/11 at 788. Thus, although various SSA personnel and OPM Counsel 2 acknowledged in their ROI affidavits, in interrogatory answers, in deposition testimony, and in hearing testimony that they had communications with one another, there is no evidence - and no basis from which to infer -- that they were anything other than general in nature about SSA anticipated submission of its requests, and OPM's expected time frame when it would be done with the rescoring and ready to issue certificates again. Based on the evidence in the record, Complainant's theory that OPM tipped SSA off to a special time during which it would issue a certificate that did not include Complainant is a far less likely explanation than SSA's contention that it was aware the Azdell rescoring was nearly complete and was trying to get a request in as soon as certificates might be available. Moreover, the record contains an April 9, 2001 order from the Azdell litigation summarizing a status conference which is consistent with the chronology recounted by OPM. The order recites the register reconstruction/rescoring efforts, and states that on or about March 9, 2001, OPM sent notices to all of the candidates of their revised scores and in the same time frame advised all the agencies that they could request certificates. Complainant's own such notice dated March 9, 2001, which she received as an ALJ candidate on the registry, is in the record. See also HT 3/1/2011 at 286-93 (priority consideration list based on Adzell litigation re-issued in mid-March). The evidence also belies Complainant's notion that SSA or OPM were trying to hide the hiring efforts SSA made using the March 14, 2001 certificate it obtained from OPM. The April 9, 2001 Azdell order reveals that OPM Counsel 1 told the MSPB in the Azdell status conference of the use of the March 14, 2001 certificate by SSA, and also advised of SSA's desire to make final selections and hold training for the new ALJ's imminently. Indeed, when the MSPB issued an order staying OPM's issuance of certificates, on the ground that MSPB approval was needed prior to use of the rescored register, top SSA officials wrote to the MSPB urging that they be allowed to proceed with hires based on the March 14, 2001 certificate, recounting at length SSA's urgent need to hire ALJs, the steps SSA had already taken to interview and tentatively select candidates off of the March 14, 2001 certificate, and its desire to proceed immediately with extending offers to those individuals, and to assign and train them. See Letter to MSPB General Counsel from SSA Acting General Counsel dated April 3, 2001; Letter to MSPB Members from SSA Associate General Counsel for General Law dated April 23, 2001 (argument in support of SSA's Motion for Leave to Intervene in the Azdell litigation, and Motion for Reconsideration of the stay); see also HT 3/2/11 at 922-23 (OPM Counsel 1 knew that SSA had started to use the certificate, had been ordered to stop, but it appeared that SSA did not want to return it so that they would not have to start over if and when stay was lifted); HT 3/2/11 at 934-35 (OPM Counsel 1 viewed taking action on a certificate as extending an offer based on it). Complainant's argument and evidence that the rescoring may have been completed months sooner notwithstanding OPM's requests for an extension of time to complete it do not demonstrate any likelihood of retaliatory intent against her in SSA's submission of an amended certificate request. While the MSPB did rule that OPM prematurely issued the March 14, 2001 certificate of eligibles prior to submitting the rescoring for an approval process involving class counsel and the MSPB, there is insufficient basis in the evidence to infer that OPM's actions in the Azdell litigation were undertaken to further a retaliatory scheme to deny Complainant potential inclusion on an ALJ certificate of eligibles. See HT 3/2/11 at 712-16 (testimony regarding memorandum from OPM staff slating that the reconstruction work was completed by staff by February 6, 2001); HT 3/2/11 at 775-76 (OPM Counsel 1 explains delay to mid-March was for completion of compliance review of the rescoring in Azdell litigation: "At one point they [MSPB] ordered us to apply a different formula to the ALJ -- applicants on the ALJ register, so we had to do what was called a reconstruction, looking at all the certificates again that had been used anywhere, because there was no geographic limitation for that construction, and generate new scores for everyone who was on the register based on the new formula. And that took much of late 2000 through 1 guess about March, early March of 2001."); HT 3/2/11 at 779 (Azdell opposing counsel complained immediately when OPM had notified agencies they were accepting new requests for certificates as of mid-March; in counsel's view, what was first needed to get permission from MSPB to proceed, but OPM Counsel 1 disagreed); HT 3/2/11 at 780-81 (testimony regarding timeline of OPM activities that had been required to be produced in the Azdell litigation); HT 3/2/11 at 785 (overlap during late 2000 and early 2001 when OPM was both doing the register reconstruction for Azdell but also the rescoring that was part of the relief phase for Complainant's 1994 case). Complainant also asserts that OPM Counsel 1 misrepresented to AJ 1 in the * * * I relief proceeding that OPM did not have to produce the March 14, 2001 certificate to Complainant in discovery because it had been "withdrawn." Complainant argues the March 14th certificate was not "withdrawn" but rather its use was "stayed" as a result of the Azdell litigation. OPM Counsel 1 testified that "withdrawn" is the same as "not used," HT 3/2/11 at 915-16, 919, whereas Complainant argues that they are not the same thing, and that OPM Counsel 1 made a false representation to AJ 1. Official contemporaneous documents in fact characterize the certificate as "withdrawn," the same term used by OPM Counsel 1. The SSA's General Counsel wrote a letter dated April 23, 2001 letter to the MSPB in the Azdell matter, quoting the MSPB's April 12, 2001 order as providing for a 60-day stay and directing that OPM "withdraw and hold in abeyance" any ALJ certificates issued since October 20, 2000. On April 13, 2001, OPM advised SSA of the MSPB's April 12, 2001 Opinion and Order, and instructed SSA to hire no candidates from the certificate of March 14, 2001. SSA, seeking relief from the stay, represented to MSPB that as of April 23, 2001, "selections have been made tentatively so as to place SSA in as good a position as possible to fill the 120 vacancies in the event that the Board grants SSA's motions and dissolves the April 12, 2001 Order." An April 16, 2001 letter from OPM to the SSA Chief ALJ quotes the "withdraw and hold in abeyance" language from the MSPB's order. The record also establishes that it was not until September 21, 2001, that the MSPB's April 12th stay was partially lifted, and MSPB specifically authorized SSA to hire from the March 14th certificate issued to it by OPM. Finally, Complainant argues that the agencies used obstructionist litigation tactics, delaying and refusing to cooperate, and that this evidences the retaliatory intent alleged in the claim.16 As noted above, in a 28-page decision dated November 22, 2010, on Complainant's motion for sanctions against SSA and OPM, the AJ found such conduct did occur, and ordered the following sanctions: denial of SSA's motion for summary judgment; preclusion of OPM from filing any dispositive motion; and the scheduling of a hearing at which OPM and SSA would be ordered to produce witnesses "for strident direct and cross-examination at a hearing, so that I can oversee development of the record, rule on objections, and judge the credibility of witnesses." Moreover, the AJ ordered that OPM and SSA produce a broad range of unredacted copies of certain documents for in camera review. As thoroughly discussed above, in light of Complainant's withdrawal of her hearing request, we will not revisit the sufficiency of the sanctions imposed or any other hearing-related rulings. While the predicate facts that resulted in the sanctions can serve as part of Complainant's proffered background evidence to prove retaliatory intent, the Commission does not find that the agencies' actions in the hearing process, even viewed in combination with all the other evidence, demonstrate that reprisal by either agency motivated SSA's February 2, 2001 amended request for a certificate of eligibles. Similarly, Complainant's evidence and argument about alleged OPM improprieties in other matters, such as disciplining one of its attorneys and failing to provide relief due in litigation by another individual with respect to ALJ registry ranking,17 is insufficient, in light of the other evidence, to support an inference that SSA or OPM retaliated against Complainant as alleged. In sum, the Commission concludes it has not been proven by a preponderance of the evidence that SSA's February 2, 2001 amended request for a certificate of eligibles was motivated by retaliation against Complainant by either OPM or SSA. The FADS are affirmed. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a wriuen 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), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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: Bernadette B. Wilson Acting Executive Officer Executive Secretariat Footnotes 1 Complainant agrees this was the score assigned her by OPM, but contends it was incorrect because of issues related to rescoring her pursuant to relief in * * * I in the same time frame. See, e.g., HT 3/9/11 at 1250.1318. 2 Among many other things, including alleged stonewalling and misconduct by OPM Counsel 1 and 2 when they were deposed, Complainant contends that OPM Counsel 2 lied in answering interrogatories about all communications with SSA by not listing verbal communications with the ALJs. At his deposition, OPM Counsel 2 maintained that the answers were correct because on advice of counsel, he contended, he interpreted the inquiry only to pertain to written communications. Deposition of OPM Counsel 2 at 107-115. 3 "Reply to HHS's Opposition to Complainant's August 29 Motion for Outside Processing and Response to SSA's Motion for Sanctions" (filed September 24, 2012). OPM contends it was never provided with the audio CD of OPM Counsel 1's deposition, and has asked for it. It was Complainant who submitted the audio CD of the Counsel 1 deposition to AJ 2 in support of her motion for sanctions. See Complainant's letter to AJ 2 dated Feb. 3, 2006. The record reflects that when Complainant withdrew her hearing request, the record was divided by the AJ as between the agencies and Complainant; we cannot determine which party received the CD. Complainant does not deny that she possesses it, but rather asserts that it is the agency's burden to include it in the appellate record. The record indicates that Complainant submitted and AJ 2 reviewed the audio recordings of OPM Counsel 1 and Counsel 2's depositions, as indicated on page 17 n.15 and page 20 of the AJ's sanctions order, presumably because it is was relevant to Complainant's argument that counsel's coughing, requests for breaks, tone of voice, and other alleged misconduct during the deposition and other actions warranted sanction. Notably, she did not seek to introduce the audio recordings as hearing exhibits, as she did various deposition transcripts. Thus, Complainant does not seek the audio recordings be included in the record for the merits of her retaliation claim, but, as she concedes, to make her argument on appeal that the sanctions imposed by AJ 2 were insufficient. 4 Complainant asserts that she filed the instant retaliation claims in part or in whole because when she raised this before AJ 1 in the May 2001 conference call, he declined to address it and suggested her allegations if true would give rise to a separate claim for retaliation. 5 See, e.g., HT 2/28/11 at 131-32 (Complainant has the tape at the hearing, but then says she will keep it, and will only provide it if the AJ will confirm on the record that he does not have it, as she seeks to establish non-compliance by the agencies with their obligation to develop and maintain the EEO record); see also HT 3/22/11 at 714 (Complainant's additional argument, based on the transcript, regarding evidentiary significance of the statements made at the May 4, 2001 hearing). 6 HT 2/28/11 at 117-20 (transcript of tape, rather than the tape, is on Complainant's exhibit list); 120-34 (Complainant is raising issue of tape not being part of file in order to challenge compliance with AJ 2's orders and maintenance and development of a proper ROI; Complainant also argues that tape shows that AJ 1 recommended she file as a separate reprisal action her instant allegations involving the certificates). 7 However, as explained at length in the preceding section of this decision, to the extent Complainant disagrees with any of AJ 2's procedural rulings on discovery, sanctions, witnesses, admissibility of evidence, or other hearing-related matters, we do not revisit those rulings on appeal because she forfeited appellate review of such matters by withdrawing her hearing request. 8 In University of Texas Southwestern Medical Center v. Nassar, 2013 WL 3155234 (U.S. June 24, 2013), the Supreme Court ruled that a "mixed motives" analysis is not available in a Title VII retaliation case, and that the controlling standard is "but for." The term "but for" does not mean "sole cause," but precludes a "mixed motives" analysis. Id. Regardless of whether or not this decision applies to cases brought in the federal sector, we find that even under the more lenient standard allowing for liability in the event of "mixed motives" the evidence does not demonstrate a retaliatory motive played any role in SSA's February 2, 2001 amendment of its January 19, 2001 request for certificate of eligibles. 9 The agencies have requested that the Commission sanction Complainant for failing to file a brief on the merits. However, under the Part 1614 appellate process, the filing of a brief in support of or opposition to an appeal is permitted, but not required. 10 Although Complainant stated in her closing argument that the actionable retaliation was "an aborted adjudication of equitable issues of relief in the * * * I proceeding," as discussed in this decision, we agree with respondents that Complainant is precluded from attacking the sufficiency of the agencies' compliance with the relief ordered in * * * I. What she has been permitted instead to challenge in the instant EEO complaint is the alleged retaliatory amendment of SSA's requested certificate of eligibles. 11 The affidavit does not make clear whether the referenced discussion involved merely SSA informing OPM it sought to amend the certificate and why it sought to do so, or - as Complainant argues - that it supports the inference that the discussion involved OPM causing SSA to amend its certificate request due to retaliatory animus toward Complainant, and a belief that the amendment would cause her not to make the certificate. As discussed in more detail in this decision, SSA contends that Washington, D.C. had been erroneously included in the original certificate, as that is a popular location that typically has a transfer wait-list from which any vacancies would be filled. Moreover, the SSA Associate Commissioner, when questioned by Complainant about this affidavit statement at her deposition, stated it was misleading if read in the manner Complainant suggested. The SSA Associate Commissioner testified at length about how she did not mean to imply that SSA and OPM discussed whether SSA should amend its requests. Rather, she testified, there were various conversations to notify OPM that SSA was making changes as SSA "reassessed the needs for the offices." Deposition at 99. This is consistent with testimony by OPM Counsel 2 and various SSA personnel about the nature of the communications between the two agencies. 12 The agencies contend that these statements are at worst confusing, and referred to the timing of certificate availability, not instructions from OPM to SSA about what locations to include. The SSA Chief ALJ gave unclear testimony at points in the hearing in this case, but also clearly stated that he understood from communications with OPM Counsel 2 that the Azdell decision had been issued and there would be a window of opportunity for hiring, and he submitted the requests given his desire to obtain a certificate as soon as they became available. HT 3/1/11 at 450-65. On cross-examination by Complainant about the "window of opportunity," he appeared to contradict himself, HT 3/1/11 at 517-20, 581, but did also repeatedly testify that he was not told to wait until March 12, but rather was simply told it would be okay to submit a request for certificate of eligibles at that time, HT 3/1/11 at 588, 592, 595. Some communication from OPM prompted his sense that they had the "green light" and could submit a request in March that, unlike the prior two, OPM would be able to act on. HT 3/1/11 at 586-87. 13 In light of our conclusion that causation has not been established, we need not resolve the parties' many factual and legal disputes regarding certain threshold issues, such as: whether OPM officials mistakenly thought at the relevant time that Complainant had limited her posting preference to Washington, D.C. or was known to have changed it by then to remove any geographic limitations; whether SSA can be liable even if only OPM possessed retaliatory intent, but OPM caused SSA to take the challenged action; whether the alleged actions were materially adverse so as to be actionable as retaliation; and, whether the claim is viable even if Complainant's score was such that she would not have made the certificate in question even if SSA had not deleted Washington, D.C. from its request. Even assuming arguendo these and other issues were resolved in Complainant's favor, respondents would nevertheless prevail because the record does not demonstrate by a preponderance of the evidence that retaliatory intent by either SSA or OPM motivated amendment of the January 19, 2001 request for certificate of eligibles. 14 See, e.g., Deposition of SSA Human Resources Specialist at 83 ("We had not recruited since 1997. The register was closed by OPM in 1999. And now this was 2001, and they were desperate to fill ALJ positions."); HT 3/2/11 at 695 (approximately 30 federal agencies employed ALJs at the time, but the lion's share were employed by SSA). 15 HT 3/2/11 at 819-23 (OPM Counsel 1 testified she was aware from the relief phase of Complainant's case by late December 2000 or early January 2001 that Complainant had no restricted geographic preference, contrary to Complainant's argument that when the amendment to the January 19, 2001 certificate was made the alleged malfeasants were under the misapprehension that Complainant had restricted her preference to Washington, D.C). 16 See, e.g., HT 3/9/11 at 1133-34 (Complainant's contention that rather than comply with discovery orders, OPM answered interrogatories about OPM Counsel 2's communications by citing pages of the transcript of his deposition on the topic). Similarly, Complainant has cited in her motions on appeal various instances of alleged coordination between counsel for the two respondent agencies in the content and timing of their respective responses to her pleadings. Such coordination is neither unusual nor disallowed as a matter of defense practice, and in any event, we do not find it to be probative of retaliatory intent by the agencies in this case. "It is not discriminatory for an entity to attempt to control its liability when confronted with the possibility of an administrative complaint or of litigation." Gibson v. Old Town Trolley Tours of Washington, D.C., 160 F.3d 177 (4th Cir. 1998) (finding that employer's refusal to allow its front-line employees to speak with plaintiff was not evidence of retaliatory intent). 17 See also HT at 958 (Complainant's argument regarding potential relevance of testimony by former OPM attorney regarding alleged culture of agency counsel's office); HT at 664 (Complainant's proffer regarding the relevance of OPM's alleged failure to provide relief due to another prospective ALJ).