U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elvis G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120170677 Hearing No. 420-2015-00120X Agency No. 4G-350-0104-14 DECISION On December 5, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's November 9, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUES PRESENTED The issues presented are (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly dismissed Complainant's request for a hearing, and (2) whether the Agency discriminated against Complainant and subjected him to harassment based on race, sex, age, and reprisal for the instant complaint. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Manager (Lead) at the Agency's Birmingham Processing and Distribution Center in Birmingham, Alabama. On September 28, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and age (54) when: 1. on May 1, 2014, his manager tried to coerce him to take a downgrade; 2. on various unspecified dates, his manager publicly criticized his managerial performance and subjected him to multiple investigative interviews; 3. on an unspecified date, his manager called him a male chauvinist; 4. on May 7, 2014, he was issued a proposed letter of warning in lieu of a seven-day suspension, which was upheld via a letter of decision dated September 5, 2014; 5. on June 26, 2014, his manager denied his request to change his non-scheduled day; and 6. on September 9, 2014, and ongoing, his detail was terminated. 1. Coerced to Take a Downgrade According to Complainant, on May 1, 2014, the Senior Plant Manager (S1) called him to her office for an investigative interview and tried to coerce him into taking a downgrade to an EAS-17 Supervisor position. He asserted that she told him "to 'give me my Form 50' (job)" and that the Human Resources (HR) Manager was present when this occurred. He also asserted that the Manager of In-Plant Support (CW1) served as S1's note-taker during many meetings and has witnessed S1's demands that he give back the Form 50. He alleged that S1 subjected African American males to harassment, that she had a pattern of asking males to request downgrades, and that everyone who had been asked to accept downgrades was over 50 years old. Complainant stated that two African American males (CW2 and CW3) voluntarily took downgrades because of the way that S1 treated them. S1 stated in her affidavit that she was "not aware of any attempt to coerce" Complainant into taking a downgrade and "not aware of any discussion" about the Complainant taking a downgrade to an EAS-17 position. The HR Manager stated that he was not aware of any attempt to downgrade Complainant. 2 CW1 did not recall attending a meeting with S1, the HR Manager, and Complainant on May 1, 2014. 2. Criticism of Managerial Performance and Investigative Interviews Complainant alleged that S1 yelled at him about an issue with "buys" on May 20, 2014; accused him of letting the facility run out of toilet paper on May 29, 2014, and accused him of letting one of his managers harm an employee who had transferred from the facility on June 16, 2014. Further, according to Complainant, S1 summoned Complainant's "whole EAS staff and two purchasing clerks" to a conference room and yelled at them for ordering orange juice instead of Gatorade for a town-hall meeting. He asserted that the public criticism constituted harassment because everyone should be treated respectfully. Complainant argued that "treatment like this was typical by [S1] particularly toward African American males." In addition, Complainant alleged that S1 subjected him to investigative interviews on February 17, April 21, April 29, and May 8, 2014, and a mediation on June 23, 2014. He stated that the interviews concerned job performance and that a majority of them did not result in corrective actions. Complainant alleged that S1 yelled at him and harassed and humiliated him. He believed that management subjected him to the interviews to force him to take a downgrade and to create a paper trail documenting situations where it appeared that he had not performed his duties. He asserted that the Agency subjected African American males to interviews more than it subjected others and that the males were older than 45. When asked if there were any witnesses to S1's criticism of his performance and to "be specific for each incident" that he cited, Complainant replied, "My entire staff of managers." He listed the names of five managers and two clerks. He did not identify specific incidents. The EEO Investigator asked four of the named managers and one of the named clerks to provide affidavits. The Report of Investigation contains the affidavits of the clerk and one of the managers. According to the EEO Investigator, the other three managers did not provide the requested affidavits. The Manager of Maintenance Engineering Support stated that he observed S1 "using a loud tone of voice" when speaking with Complainant about "eBuy purchases." In addition, he recalled that S1 talked to him and Complainant about the purchase of orange juice and to Complainant about running out of toilet paper. He was not sure of the dates on which the discussions occurred. The Maintenance Operations Support Clerk stated that she was not aware of or present for the May 20, May 29, and June 16, 2014, discussions. She stated that she purchased orange juice for the town-hall meeting "because of time constraints between [S1's] request and the event date." A Maintenance Manager and A Manager of Maintenance Operations told her that S1 "was upset by the choice." S1 stated that she was not aware of a May 22, 2014, incident concerning "buys," but that there were "numerous discussions" about Complainant's work performance and not meeting requirements.3 Complainant and his managers had a May 29, 2014, meeting about "the purchasing of tools and parts," but she was not aware of accusing him of mismanagement and letting the facility run out of toilet paper. She also was not aware of accusing him of letting a manager harm an employee. She acknowledged that she had a discussion with Complainant about purchasing orange juice and not following instructions for a town-hall meeting, but she was not aware of yelling at him. Similarly, S1 was not aware of specific incidents on February 17, April 21, April 29, and May 8, 2014. She asserted that "any discussion with [Complainant] was pertaining to work related performance issues." 3. Called a Male Chauvinist Complainant alleged that S1 called him a male chauvinist on June 23, 2014. According to Complainant, he asked her what she had against him and she replied that he was a male chauvinist. He stated that, although no one witnessed the conversation, he discussed the incident with one of his managers (whom he did not name) and a union representative. When asked why he believed that the comment was related to his race and age, Complainant simply replied, "Yes." S1 stated that she was "not aware of this incident on June 23, 2014 of calling [Complainant] a male chauvinist." 4. Letter of Warning On May 7, 2014, S1 issued Complainant a Proposed Letter of Warning in Lieu of a 7-Day Suspension for Unsatisfactory Work Performance. S1 stated in the letter that a safety inspection during the week of April 14-18, 2014, disclosed four violations: fall protection on ladders and pits was not used, safety talks were not given to employees, certain testing and application requirements were not adhered to, and maintenance areas were cluttered with debris. She also stated that there was a lack of oversight concerning "key control." The Birmingham, Alabama, District Manager (S2) upheld the proposal and issued a Letter of Warning in Lieu of a 7-Day Suspension on September 5, 2014. She determined that Complainant did not ensure the implementation of the Electrical Work Plan (EWP) and that, as a result, there were "severe safety violations that could have resulted in injury to [Agency] employees." In addition, S2 found that Complainant had not completed the semi-annual Key Inventory Certification by the required date. She concluded that Complainant's actions could have caused harm to employees and that his performance was unsatisfactory. Complainant argued that S2 did not issue the decision within the required timeframe because she did not issue it within thirty days after he appealed the matter. He also argued that the charged safety violations "were not as severe as the letter indicated" and "were abated within a reasonable time." He asserted that the charges did not reflect anything that he did directly and concerned "debatable process failures." Complainant alleged that the Agency held African American managers to higher standards and did not discipline other managers who had similar process failures. He asserted that the Agency issued letters of warning to four other male managers: CW3 (African American), CW4 (African American), CW5 (African American), and CW6 (White). According to Complainant, all of them were older than 45. He also asserted that three female managers (CW1, African American; the Acting Manager of Distribution Operation, African American (CW7); and the Manager of Transportation Networks, White (CW8) engaged in similar behavior but did not receive letters of warning. He stated that they were between 35 and 45 years old. Complainant alleged that the Agency issued the Letter of Warning "in retaliation for [his] filing this EEO complaint." S1 stated that she issued the Proposed Letter of Warning for the reasons outlined in the letter. She also stated that, although she was not aware of the specific dates of investigative interviews, Complainant had "numerous opportunities to improve on his performance." S1 was not aware of issuing letters of warning to CW3, CW4, and CW5 for engaging in behavior similar to Complainant's behavior. She did not address whether she issued a letter of warning to CW6, but she stated that she was not aware of CW6 engaging in behavior similar to Complainant's. Likewise, she was not aware of CW1, CW7, and CW8 engaging in such behavior. According to S1, all of the named comparators "have different areas of responsibility," and CW5 "reports to a different manager." S2 stated that she issued the Letter of Decision upholding the Proposed Letter of Warning "[b]ecause the proposed discipline required a Letter of Decision in order to complete the action." She denied that Complainant's race, sex, age, and EEO activity were factors in the issuance of the Letter of Decision. 5. Denial of Change in Non-Scheduled Day Complainant stated that, on June 26, 2014, S1 denied his request to change his non-scheduled day. Although Saturday and Sunday were his non-scheduled days, he had to work on Saturday because of a machine breakdown and on Sunday because of no available staff. As a result, he worked seven days in one week "and ended up working 16 days straight before [his] next scheduled rest day." When asked if management gave him a reason for denying his request for a schedule change, Complainant replied, "Because I did not submit a schedule change in advance." He asserted that "this would have easily been granted if not for the nature of [his] relationship with" S1. He also asserted that the Agency allowed other employees to adjust their schedules after submitting requests to do so. In response to the EEO Investigator's questions about why he believed that the refusal to change his non-scheduled day was based on his race, sex, and age, Complainant replied, "Because of [S1's] attitude toward me." In response to the EEO Investigator's question about whether any other managers who reported to the same supervisor as Complainant had their requests to change non-scheduled days granted or denied, he stated that CW1's request was granted and CW4's request was denied. S1 did not recall denying Complainant's request to change his non-scheduled day. She was not aware of "any specific request that was denied for" CW4. The EEO Investigator asked her to respond to Complainant's assertion that she had granted CW1's request to change a non-scheduled day under similar circumstances. S1 replied that she was "not aware of any similar situation [CW1] would have to" Complainant's situation and that "managers have different areas of responsibility." When asked whether any other employees under her supervision had requested a change in a non-scheduled day under circumstances similar to Complainant's, S1 replied, "No, all managers have different areas of responsibility and would not have similar circumstances." 6. Termination of Detail Complainant received a temporary detail assignment to a Manager, Maintenance Operations, position at the Fort Worth Processing and Distribution Center. An August 26, 2014, Assignment Order form lists August 30, 2014, as the start date and September 26, 2014, as the end date. A September 9, 2014, Assignment Order form gives a September 19, 2014, end date. Although the EEO Investigator asked Complainant to "identify by full name, position title, and work location the management official(s) who terminated [his] detail," Complainant did not do so. Instead, in response to the question, Complainant stated that "the District Manager" gave him the detail assignment to the Fort Worth facility "for 30 day intervals." It is not clear if he was referring to S2 or if the Fort Worth, Texas, facility had a different District Manager. Complainant also stated that S1's Executive Assistant told him that he "needed to submit documentation for the second 30-day interval," that he "was contacted and told [his] detail would end on the 19th," that he "request[ed] that it be extended through the 26th and this was denied," and that he "was instructed to return on the 12th." According to Complainant, management told him that "[t]hey needed [him] back." When asked if he disputed management's reasons for terminating the detail, Complainant replied, "[S1] required me to return on the 12th before my 2nd 60 would end simply because she could do so. There was no urgent need. I asked her to extend the detail . . . and my request was denied." When asked why he thought that the decision to end the detail was a form of harassment, Complainant replied that S1 opposed the detail and told him that he did not deserve it. Complainant stated that the Agency allowed two white, male managers (the Plant Manager of the Montgomery P&DC (CW9) and the Plant Manager of the Tallahassee P&DC (CW10)) to remain on detail. In addition, Complainant alleged that the Agency terminated his detail in retaliation for his "EEO complaint and other grievances and treatment [that he] reported to [S1's] supervisor," S2. S1 stated that the Agency permitted Complainant to go on a 90-day detail, that she did not end the detail, and that she was not aware of the circumstances surrounding the end of the detail. She also stated that she was the supervisor of CW9 and CW10, that CW9's "detail was in a different capacity and location," and that she was not aware of any detail that CW10 had. S2 stated that she was not involved in the decision to end the detail. She "was notified that the host District was terminating the Complainant's detail." Harassment Complainant alleged that S1 bullied him and treated him disrespectfully. He stated that he complained about S1 to S2. He asserted that S1 treated CW1 and CW8 better than she treated Complainant. He also asserted that S1 treated an African American female manager (CW11), who did not report to S1, more favorably with respect to a carpeting incident. S1 stated that Complainant did not complain to her that anyone had subjected him to a hostile work environment. She was not aware of any similarity of circumstances between Complainant and CW1, CW8, or CW11. When asked if Complainant had complained to her about a hostile work environment, S2 replied, "Not that I can recall." Similarly, the HR Manager was not aware of Complainant ever complaining to him about a hostile work environment. Hearing Request At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing. On April 10, 2015, the Administrative Judge issued an Acknowledgement and Order (A&O) and an Order Regarding the Hearing Process (HP Order) that explained the procedures involved in the federal-sector hearing process. The A&O noted, among other things, that extensions of filing dates would not be granted absent a prompt written request and a showing of good cause. The A&O also noted that discovery must be initiated within 20 days and completed within 75 days of receipt of the A&O, that parties must respond to discovery requests within 30 days of receipt of the requests, that a motion to compel must be filed within ten days of receipt of a deficient response, and that an opposition to a motion to compel must be filed within 10 days of receipt of the motion. In addition, the A&O stated that failure to follow the AJ's orders could result in sanctions pursuant to 29 C.F.R. § 1614.109(f)(3). The HP Order noted that parties had seven days to respond to procedural motions, that they should seek continuances and extensions in a timely manner, and that motions for "extensions of deadlines submitted within 48 hours of the deadline rarely will be granted." It stated that, if Complainant was seeking damages, he should submit an itemized list of damages to the Agency and the AJ within 75 days of the Order. The Agency served its discovery requests directly to Complainant on May 5, 2015, and then through his attorney on May 15, 2015. In a June 19, 2015, e-mail to Complainant's attorney, the Agency's attorney noted that responses to its discovery requests had been due on June 15, 2015, and that the Agency would file a motion to compel if Complainant did not respond to discovery by June 22, 2015. Complainant's attorney responded that he was reviewing his file and would provide discovery responses by June 22. On June 22, 2015, Complainant produced responses to interrogatories and requests for admissions but did not produce any documents. In the accompanying e-mail, Complainant's attorney stated that he was "not aware of any independent documents responsive to any requests for production" and that he reserved the right to supplement the discovery responses. On June 24, 2015, the Agency's attorney sent Complainant's attorney a letter outlining the deficiencies in the discovery responses and stated that the Agency opposed additional extensions of time for discovery responses unless Complainant filed a motion to extend the discovery period and the deadline for filing dispositive motions. Complainant's attorney replied that he had forwarded the Agency's request for "supplemental responses" to Complainant and would "address any relevant issue" and send the responses to the Agency after he received them. On June 25, 2015, the Agency filed a Motion to Compel, and the AJ issued an Order finding that Complainant had failed to cooperate in discovery and ordering him to respond fully to the Agency's discovery requests. After Complainant noted that the Order gave conflicting deadlines, the AJ vacated the Order and issued a new Order on June 30, 2015. She gave Complainant until July 14, 2015, to produce "all responsive discovery" and to file any objections to discovery through an opposition to the Agency's Motion to Compel. Complainant did not file an opposition to the Motion to Compel by that date. The Agency filed a Motion for Sanctions on July 17, 2015. It stated that Complainant partially responded to the Agency's discovery request on July 14, 2015, but did not produce any documents and did not explain why he did not produce them. In addition, the Agency noted that Complainant had not responded to discovery in a timely fashion, had not responded to its Motion to Compel, and had not filed a list of damages. In his Response to Agency's Motion for Sanctions, Complainant argued that he had "fully complied" with the AJ's Orders, that he had made good-faith efforts to respond to the Agency's discovery requests, and that sanctions were not appropriate. He submitted a June 9, 2015, "Offer of Settlement" that listed the damages that he said he incurred as a result of the alleged discrimination. He argued that this document complied with the HP Order's requirement that he file a list of damages. In addition, Complainant asserted that he submitted his original and supplemental discovery responses within the established timeframes. He also asserted that the medical records that the Agency requested were not relevant at the pre-hearing stage because they pertained to his claim for damages, that he was "making a good faith effort to obtain" them, and that he would produce them "in the very near future." On September 21, 2015, the AJ ordered the parties to confer and to submit a joint report on the status of discovery. Complainant submitted an October 2, 2015, request for a protective order related to his medical information, and the parties submitted separate status reports on October 5, 2015. On October 12, 2016, the AJ issued a Corrected Order Granting Agency Motion for Sanctions and Remanding Complaint. The AJ found that Complainant violated two orders when he did not respond to discovery in a timely manner and did not fully produce discovery pursuant to the AJ's June 30, 2015, order. She did not find that Complainant violated the HP Order when he did not produce damages information to the AJ. The AJ determined that Complainant showed "marked disregard . . . for his discovery obligations, both repeatedly and over time." She noted that, "over a week after missing the July 14, 2015 deadline, Complainant made only vague assertions of taking some action to secure responses to the medical and personnel-related documents, while expressing unfounded disdain for the obligation." She also noted that Complainant's actions had caused prejudice to the Agency, which had to file briefs about his non-compliance and had "been mired in wasteful discussions with Complainant about discovery matters." The AJ found that "Complainant's attempt to justify his initial failure to produce by re-framing future productions as 'supplemental responses' was wasteful and inefficient" and that "many of Complainant's original responses . . . were vague, evasive and confusing; many of them were tendered in haphazard fashion." The AJ concluded that "Complainant's conduct taxed the interests and integrity of the hearing process" and that his conduct did not comport with the orders of the AJ. Accordingly, the AJ granted the Agency's Motion for Sanctions and remanded the case to the Agency for a final agency decision (FAD). Having determined that remand for a FAD was an appropriate sanction, the AJ found that the Agency's Motion Compel and Complainant's Motion for a Protective Order were moot. Final Agency Decision The Agency concluded that the evidence did not establish that it had discriminated against Complainant as alleged. It found that Complainant did not establish prima facie cases of discrimination with respect to claims (4), (5), and (6) because he did not show that the Agency treated similarly situated employees not of his protected groups more favorably than it treated Complainant. In that regard, the Agency stated that all of the comparators whom Complainant named "had different job titles and responsibilities" and "were not subject to the same job requirements as" Complainant. Further, the Agency found that Complainant did not present other evidence that would support an inference of discrimination. With respect to claim (5), the Agency stated that S1 did not recall denying a request to change Complainant's non-scheduled day and that the record contained no evidence that Complainant had requested the change. The Agency concluded that Complainant had not shown that the Agency had subjected him to an adverse action because he had not proven that S1 denied his request. In addition, the Agency found that managers articulated legitimate, nondiscriminatory reasons for their actions. It noted that S1 stated that she issued the Proposed Letter of Warning in Lieu of a 7-Day Suspension for the reasons outlined in the letter and that S2 stated that she issued the Letter of Decision because the letter was necessary to finalize the proposed action. With respect to claim (6), the Agency noted that S1 stated that the Agency permitted Complainant to go on a detail, the detail ended, and she was not responsible for ending it. The Agency also noted that S2 stated that she was not involved in the decision to end the detail. The Agency found that Complainant did not establish that the articulated reasons were a pretext for discrimination. It stated that he did not show that S1 was involved in the termination of his detail, that he presented no documentary evidence or witness testimony to support his claim that the Agency held African American males to higher standards, and that he did not offer "any evidence other than his unsubstantiated testimony that management's actions were related to his race, sex, and age." Further, the Agency determined that Complainant did not establish that the Agency subjected him to a hostile work environment. The Agency found that Complainant did not show that S1 engaged in the conduct alleged in claims (1) and (3). With respect to claim (2), the Agency found that Complainant had shown that he was subjected to unwelcome conduct. The Agency also found, however, that Complainant did not establish that management's conduct with respect to any of his claims was based on his race, sex, or age. Finally, the Agency found Complainant did not show that the Agency subjected him to conduct that was so severe or pervasive as to create a hostile work environment and did not establish a basis for imputing liability to the Agency. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, argues that the AJ erroneously dismissed his request for a hearing. He contends that he responded fully and timely to the Agency's discovery requests. Complainant states that he was on temporary duty in Texas for most of the discovery period, his attorney was in Alabama, and "there were distinct and inherent impediments to timely communications between the two." According to Complainant, "due to Complainant being out of state on temporary detail it was merely logistical issues that caused any delays and despite that fact discovery was still produced to the Agency as [prescribed] by the Judge's Orders and the agreement of the parties." He asserts that he provided "timely supplemental responses" to the Agency. Further, noting that he provided the Agency with "Supplemental Answers to Agency's First Interrogatories" on July 14, 2015, Complainant claims that the AJ erroneously stated that he did not file a response to the Agency's Motion to Compel. In addition, Complainant argues that he "has set out several claims of disparate treatment and harassment based on his protected class of African American Male over the age of 40." He contends that "[h]e was subjected to multiple investigative interviews, denied a change of an off day, unfairly disciplined, and had a temporary assignment terminated without cause when at least two of his white counterparts had their details extended during relevant time periods." He also contends that the Agency treated him less favorably than it treated similarly situated employees not of his protected groups. Complainant argues that a decision without a hearing was improper because there are issues of fact and credibility. In response, the Agency argues that the AJ properly dismissed Complainant's hearing request. The Agency contends that Complainant willfully violated the AJ's orders, which expressly notified the parties that failure to comply with the orders could result in sanctions. The Agency also contends that Complainant's assertion, in his Response to Agency's Motion for Sanctions, that he fully complied with the AJ's orders was inconsistent with his statement, also in the Response, that he would produce medical records in the near future. In addition, the Agency argues that it articulated legitimate, nondiscriminatory reasons for its actions. It contends that S1 criticized Complainant for "allowing the facility to run out of toilet paper, ordering breakfast refreshments for an afternoon meeting, and failing to approve a subordinate employee's transfer that precluded her from being paid." It also contends that S1 conducted investigative interviews with Complainant and issued the Letter of Warning because of "performance failures." The Agency states that Complainant "testified that his schedule change was denied because it was not requested in advance." With respect to the termination of Complainant's detail, the Agency states that "the host facility did not renew [Complainant's] detail and it terminated naturally." The Agency maintains that the FAD correctly determined that there was no evidence that S1 tried to coerce him to accept a downgrade or called him a male chauvinist." Further, the Agency maintains that Complainant did not show that the articulated reasons were a pretext for discrimination. It argues that Complainant has not shown that the reasons were implausible or contradictory. It also argues that Complainant has not shown that the Agency treated him less favorably than it treated situated employees. The Agency asserts that CW1, CW7, CW8, CW9, and CW10 are not similarly situated to Complainant because they held employment positions different from his. Finally, the Agency argues that Complainant did not establish that the Agency subjected him to discriminatory harassment because Complainant did not show that the conduct at issue occurred because of his protected status. The Agency further argues that the conduct was not sufficiently severe or pervasive to constitute harassment. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Dismissal of Hearing Request The Commission's regulations afford broad authority to Administrative Judges for the conduct of hearings, including the authority to sanction a party for failure without good cause shown to comply fully with an order. See 29 C.F.R. § 1614.109; EEO-MD-110, Chap. 7, § III(D); Complainant v. Dep't of Transp., EEOC Appeal No. 0120123005 (June 13, 2014) (citing Brannon-Winters v. Dep't of the Navy, EEOC Appeal No. 01A51549 (Mar. 28, 2006)). Where a party fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate. Id. Upon review, we find that it was not an abuse of discretion to dismiss Complainant's request for a hearing. The record establishes that the AJ notified Complainant that parties must respond to discovery requests within 30 days of receipt of the requests and that a failure to follow orders could result in sanctions. The record also establishes that the AJ specifically ordered Complainant to produce all discovery and to file any objections to discovery through an opposition to the Agency's Motion to Compel. There is no merit to Complainant's claim that the AJ erroneously stated that he did not file a response to the Agency's Motion to Compel. His July 14, 2015, Supplemental Answers to Agency's First Interrogatories was a response to the Agency's discovery request, not an opposition to the Motion. Moreover, contrary to Complainant's assertion, he did not respond fully and timely to the Agency's discovery requests. He asserts that there were communications "impediments" when he was on temporary duty in Texas, but he has not explained why he did not seek an extension of time within which to file his discovery responses. Further, having reviewed the record, we agree with the AJ's determination that many of his responses were vague and confusing. Accordingly, we find that the AJ properly dismissed Complainant's hearing request. See Wes L. v. Dep't of Def., EEOC Appeal No. 0120151909 (Aug. 25, 2017) (not an abuse of discretion to dismiss hearing request where complainant did not give adequate responses to agency's discovery request as ordered); Barbara C. v. Dep't of Health and Human Servs., EEOC Appeal No. 0120150417 (Aug. 3, 2017) (not an abuse of discretion to dismiss hearing request where complainant did not respond to two interrogatories and five document requests after AJ ordered her to provide full responses); request for reconsideration denied, EEOC Request No. 0520170598 (Feb. 9 2018). Disparate Treatment To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. 1. Coerced to Take a Downgrade Complainant alleged that, during a May 1, 2014, investigative interview, S1 tried to coerce him into taking a downgrade and told him to give back a Form 50. S1 did not specifically deny or refute the allegation. Instead, she stated that she was "not aware" of a discussion about a downgrade or an attempt to coerce Complainant into taking a downgrade. Even assuming that the conversation occurred as Complainant described it, however, we do not find that the evidence creates an inference that it was based on Complainant's race, sex, or age. Although Complainant states that two African American males voluntarily took downgrades because of the way that S1 treated them, he has offered no specific information about the circumstances surrounding the downgrades. His broad assertion that S1 harassed African American males and had a pattern of asking males to take downgrades is insufficient to establish that S1 asked him to take a downgrade for discriminatory reasons. We find, therefore, that Complainant has not established a prima facie case of discrimination because he has not presented facts from which to draw an inference that S1 tried to coerce him into taking a downgrade because of his race, sex, or age. 2. Criticism of Managerial Performance and Investigative Interviews Complainant alleged that S1 yelled at him, criticized him in public, and subjected him to several investigative interviews. S1, who was "not aware" of many of the specific incidents that Complainant cited, acknowledged that there were "numerous discussions" about Complainant's work performance and that one of them was about the purchase of orange juice. She asserted that all of the discussions concerned performance issues. The Manager of Maintenance Engineering Support stated in his affidavit that S1 spoke to Complainant in a loud voice about "eBuy" purchases. The record does not contain affidavits from three other managers whom Complainant listed as witnesses. Commission regulations state that, during an investigation of a complaint, "[t]he complainant, the agency, and any employee of a federal agency shall produce such documentary and testimonial evidence as the investigator deems necessary." 29 C.F.R. § 1614.108(c)(1). There is no explanation for the three Agency managers' failure to respond to the EEO Investigator's requests for affidavits. Nothing in the record indicates that the managers no longer worked at the Agency or were unable to respond to the requests due to incapacitation. Pursuant to 29 C.F.R. § 1614.404(c), when a party to an appeal fails without good cause to respond fully and timely to requests for information, the Office of Federal Operations shall, in appropriate circumstances: (1) Draw an adverse inference that the requested information or testimony would have reflected unfavorably on the party refusing to provide the requested information; (2) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (3) Issue a decision fully or partially in favor of the opposing party; or (4) Take such other actions as appropriate. Because the three managers failed to provide the requested affidavits, we take an adverse inference against the Agency and find that the missing information would have reflected unfavorably on the Agency. In that regard, we find that the affidavits would have supported Complainant's assertions that S1 criticized him in public, yelled at him for ordering orange juice for a town-hall meeting, accused him of letting the facility run out of toilet paper, accused him of letting a manager harm an employee who had transferred, and subjected him to several investigative interviews. Even with this adverse inference, however, we find that the evidence does not establish that S1 took these actions because of Complainant's race, sex, or age. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No 0120122930 (June 30, 2014) (no discrimination found where, even with an adverse inference for failure to produce an affidavit from complainant's first-level supervisor, evidence did not establish that Agency issued notice of removal because of complainant's age or national origin). Complainant alleged that S1's behavior toward him was "typical" of her behavior toward African American males and that the Agency subjected older African American males to interviews more than it subjected other employees. Complainant, however, did not identify the other employees who allegedly had been subjected to such conduct. His bare assertions are insufficient to create an inference of discrimination. Further, his statement that S1 yelled at the "whole EAS staff and two purchasing clerks" indicates that S1 exposed all employees to the conduct. Nothing in the record establishes that the EAS staff and purchasing agents consisted only of older African American males. 3. Called a Male Chauvinist Complainant alleged that, on June 23, 2014, S1 called him a male chauvinist. S1, who stated that she was "not aware" of the incident, did not deny or refute the allegation. We find, therefore, that Complainant's unrefuted testimony establishes that S1 made a comment that on its face disparaged Complainant because of his sex. There is no evidence that S1 made the comment because of Complainant's race or age. 4. Letter of Warning The Agency issued Complainant a May 7, 2014, Proposed Letter of Warning and subsequent September 5, 2014, Letter of Warning in Lieu of a 7-Day Suspension for Unsatisfactory Work Performance. We assume, for purposes of analysis only and without so finding, that Complainant has established prima facie cases of discrimination based on race, sex, age, and reprisal for protected EEO activity.4 The Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Proposed Letter of Warning cited four safety violations and a lack of "key control" oversight. The Letter of Warning noted that Complainant had not completed the Key Inventory Certification on time and that safety violations occurred because Complainant did not implement the EWP thoroughly. Complainant has not shown that the articulated reasons were a pretext for discrimination. He has not proven that the proffered explanations are unworthy of credence. Complainant's assertions that the violations were not as severe as the Letter of Warning indicated, were abated in a timely manner, and involved "debatable process failures" do not establish that the violations did not occur. Further, Complainant has not proven that a discriminatory reason more likely motivated the Agency's actions. He has not shown that the Agency treated him less favorably than it treated similarly situated employees not of his protected groups. He alleged that the Agency held African American managers to higher standards, but his reference to comparators does not support this allegation. One of the four managers who received letters of warning was White, and two of the three managers who did not receive letters of warning were African American. Even though the four managers who received letters were male and the three managers who did not were female and younger than Complainant, we cannot say that considerations of sex or age motivated the Agency's actions. Complainant has offered no information at all about the comparators' alleged infractions and has not explained why he believes that their behavior warranted the issuance of letters of warning. In the absence of such information, we cannot say that the Agency treated younger, female managers more favorably than it treated Complainant. 5. Denial of Change in Non-Scheduled Day Complainant alleged that, on June 26, 2014, S1 discriminatorily denied his request to change his non-scheduled day. He stated that management granted the request of CW1, who reported to the same supervisor as Complainant. S1 stated that she did not recall denying Complainant's June 26, 2014, request. Asserting that "managers have different areas of responsibility," S1 stated that she was "not aware" of any similar situation involving CW1. Complainant's unrefuted testimony establishes that S1 denied his request to change his non-scheduled day. We find, however, that Complainant has not established a prima facie case of discrimination because he has not presented facts from which to draw an inference that S1 denied his request because of his race, sex, or age. Complainant stated that the Agency granted CW1's request to change her non-scheduled day, but he offered no information regarding the circumstances of her request. For example, it is not clear if CW1 provided the same amount of notice that Complainant provided or if she provided more notice. Further, Complainant's assertion that S1 denied his request "because of [her] attitude toward [him]" does not link the denial to any of his protected bases. 6. Termination of Detail The record establishes that Complainant received a detail assignment to a Manager, Maintenance Operations, position at the Fort Worth Processing and Distribution Center that initially was scheduled to end on September 26, 2014, and that instead ended on September 19, 2014. When specifically asked to identify the official who ended his detail, Complainant did not do so. Instead, he vaguely stated that he "was contacted and told" that the detail would end and that his request to extend the detail "was denied." Although Complainant subsequently asserted that S1 required him to return before the end of the detail, S2 stated that "the host District" terminated the detail. We find that Complainant has not established a prima facie case of discrimination because he has not presented facts from which to draw an inference that the Agency terminated his detail because of his race, sex, age, or protected EEO activity. Given that Complainant did not identify the deciding official when expressly asked to do so, we find S2's statement that "the host district" terminated the detail to be credible. Complainant has not shown that officials at the Fort Worth facility harbored discriminatory animus against him. There is no evidence that they were aware of his protected EEO activity.5 Further, Complainant has offered no information about the circumstances of CW9's and CW10's details. He has not shown that officials at the Fort Worth facility permitted CW9 and CW10 to continue their details but ended Complainant's detail under similar circumstances. In fact, he has not shown that either comparator received a detail to the Fort Worth facility. On that point, we note that S1 stated that CW9's detail was at a different location. Harassment In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the Agency tried to coerce him to take a downgrade, subjected him to criticism and investigative interviews, issued a letter of warning, denied his request to change his non-scheduled day, or terminated his detail for discriminatory reasons. Although we find that S1 called Complainant a male chauvinist, we also find that this single comment was not so severe or pervasive as to create a hostile work environment. We conclude, therefore, that Complainant has not demonstrated that the Agency subjected him to harassment based on race, sex, age, or reprisal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFIRM the Agency's final decision and its finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations ___9/5/18_______________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 In an apparent typographical error, the EEO Investigator asked the HR Manager about a June 1, rather than May 1, 2014, alleged attempt to coerce Complainant into taking a downgrade. The HR Manager said that he did "not recall that specific conversation." 3 In an apparent typographical error, the EEO Investigator asked the HR Manager about a May 22, rather than May 20, 2014, discussion about "buys." 4 Although Complainant did not allege reprisal in his formal complaint, he asserted in his affidavit that the Agency issued the Letter of Warning in retaliation for the instant complaint. A complainant may raise additional bases during the investigation of a complaint. See Dragos v. U.S. Postal Serv., EEOC request No. 05940563 (Jan. 19, 1995); Edwards v. Dep't of Defense, EEOC Request No. 05910830 (Dec. 19, 1991). 5 In his affidavit, Complainant raised reprisal as a basis. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170677 19 0120170677