Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 24, 2015

01-2013-1979-0500 (E.E.O.C. Jul. 24, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120131979

Agency Nos. 2003-0702-2009104755; 2003-0702-2010101593; 2003-0702-2011102301

Hearing Nos. 560-2010-00256X; 560-2012-00130X

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
March 14, 2013 final Agency decision (FAD) concerning his equal employment opportunity
(EEO) complaints 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.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-5 Human
Resources Assistant (HR Clerk) at the Agency’s Health Resource Center in Topeka, Kansas.

Agency No. 2003-0702-2009104755 [Complaint 1]

On August 4, 2009, the Senior Human Relations Specialist (SHRS) issued Complainant a
Letter of Admonishment based on charges that Complainant worked overtime without
supervisory authorization, altered an established training schedule without authorization, failed
to follow instructions, and misrepresented his workload when requesting annual leave. The
next day, SHRS issued Complainant a Written Counseling on August 5, 2009, reminding him
that he was currently failing to meet the performance standards in the critical elements entitled
“Customer Service,” “Technical Expertise,” and “Timeliness.” Complainant denied that he
had violated any rules.

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On August 6, 2009, Complainant called in to a staff member to report that he would not be
reporting to work because of a family situation. The staff member passed the message to
SHRS, and she contacted Complainant that afternoon regarding his absence and his failure to
contact her. Complainant told SHRS that he had an emergency situation involving his daughter
and that he needed a couple days of emergency annual leave. SHRS informed Complainant
that there was no emergency leave, but if he submitted medical documentation, he might
qualify for leave under the Family Medical Leave Act (FMLA). Complainant responded that
his family situation was confidential and indicated that he would not bring in documentation.
On August 10, 2009, Complainant returned to work and did not submit any documentation.
SHRS instructed the Timekeeper to charge Complainant absence without official leave
(AWOL) for the two-day absence.

On November 6, 2009, the Assistant Human Resources Officer (AHRO) issued Complainant
his performance appraisal for Fiscal Year 2009. Complainant received a “Fully Successful”
rating. Complainant believed that many of AHRO’s comments were negative, suggesting that
his performance was not successful, and that they would negatively impact his efforts for
promotion or when he applied for a new position.

On March 9, 2010, Complainant’s immediate supervisor (S1) emailed Complainant and
directed him to complete the new employee orientation processing for two new employees by
3:00 p.m. that day and to notify her when he had completed the assigned task. After receiving
the email, Complainant entered her office and confronted her in an agitated and argumentative
manner. Complainant told S1 that he had until 5:00 p.m., the end of his tour of duty, to
complete the assignment. S1 sent Complainant another e-mail reminding him to notify her
when he completed the assignment; however, Complainant completed the assignment and left
the office without informing S1. On April 2, 2010, AHRO issued Complainant a Letter of
Reprimand for engaging in unacceptable conduct on March 9, 2010. In addition, the
reprimand charged Complainant with a lack of candor involving his failure to provide a
forthright explanation for not entering two incoming employees into a database.

On April 6, 2010, AHRO placed Complainant on a performance improvement plan (PIP). The
PIP identified several instances of Complainant's failure to timely complete time sensitive tasks
involving newly hired employees and his failure to properly process the posting of vacancy
announcements. Complainant claimed that several of the issues raised in his PIP occurred
when he worked under another supervisor and no management official ever discussed any of
the issues with him.

On April 6, 2010, S1 issued Complainant a mid-year Special Rating of Record rating him
“Unsatisfactory.” The mid-year rating identified several incidents of Complainant's failure to
perform his duties with respect to vacancy announcements and new employee selections. The
notice listed the time period beginning November 19, 2009 and ending December 8, 2009, as
the time during which Complainant failed to adapt to changing priorities, or to demonstrate the
ability to handle multiple tasks simultaneously so as to ensure the completion of time sensitive
tasks.
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On December 1, 2009 (and amended on April 21, 2010), Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of sex (male) and in reprisal
for prior protected EEO activity when:

1. On August 4, 2009, he received a Letter of Admonishment;
2. On August 5, 2009, he received a Written Counseling;
3. On August 10, 2009, he became aware he was charged AWOL for August 6 and
7, 2009;
4. On November 6, 2009, he received a "fully successful" rating on his
Performance Appraisal for fiscal year ending September 30, 2009;
5. On April 6, 2010, he received a Letter of Reprimand;
6. On April 6, 2010, he was placed on a Performance Improvement Plan (PIP);
and
7. On April 6, 2010, he received a Special Rating of Record rating him
Unsatisfactory.

In addition, Complainant alleged that he was subjected to a hostile work environment based on
sex as evidenced by the above-mentioned incidents and additional incidents including, inter
alia, during a meeting the Acting Supervisor (AS) asked Complainant to leave the room;
Complainant became aware that AS twice asked co-workers whether Complainant needed help
with his assignments to subsequently charge him with errors he did not make; work
assignments were removed from his desk and he subsequently did not receive any recruitment
actions.

Agency No. 2003-0702-2010101593 [Complaint 2]

Complainant applied for a GS-5/6 Management and Program Assistant Position and a GS-9
Management and Program Analyst position. Complainant was found qualified for both
positions and participated in a performance-based interview. Two panels conducted the
interviews using questions that were representative of the responsibilities of both positions and
not manager-specific. The panels interviewed each candidate and combined their scores for a
total overall score. Selectee 1 was the top scoring candidate with a total of 3750 points and
was selected for the Program Assistant GS-5/6 position. Complainant's total score of 2643
points earned him a second place for the Program Assistant position. Selectee 2 scored 6250
points and was selected to fill the Program Analyst GS-9 position. Complainant scored 2643
points which earned him third place for the Program Analyst position. Complainant received
written notification of his non-selection for both positions on November 18, 2009.

On March 18, 2010, Complainant filed a second EEO complaint alleging that the Agency
discriminated against him based on sex and in reprisal for prior protected EEO activity when,
on November 19, 2009, he received written notification that he had not been selected for either
of the above referenced positions.

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Agency No. 2003-0702-2011102301 [Complaint 3]

Complainant claimed that he was hired under the reinstatement of career employees authority;
therefore, he was not required to serve a probationary period. Complainant explained that his
previous pay rate was EAS-16 which he described as the equivalent of a GS-12 pay grade.
Complainant stated that based on the conversation he had with the Human Resources Assistant
who contacted him to offer him the position, he was under the impression that he would be
hired at the GS-4, step 10 rate. When Complainant received his official welcome letter, he
learned that his pay grade would be GS-4, step 1. Complainant questioned whether Agency
policy was followed with respect to utilizing the Previous Highest Rate to determine his pay
grade and step. Complainant claimed that the Director hired an employee at a GS-4, step 10
level without using the “PHR” to determine his pay grade and step.

On May 4, 2011, Complainant filed a third EEO complaint alleging that the Agency
discriminated against him based on race (African-American) and age (51) when on March 7,
2011, he learned that the Chief Business Office Director hired a Human Resources Clerk at the
GS-4, step 10 pay rate, but he was denied the same rate of pay upon his hiring in June 2008.1

At the conclusion of the investigations, the Agency consolidated the complaints and provided
Complainant with copies of the reports of investigation (ROI1, ROI2, and ROI3 respectively)
and notice of his right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge. Complainant initially requested a hearing, but later
withdrew that request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, as to Complaint One, the Agency initially assumed arguendo that Complainant
established a prima facie case of discrimination and reprisal and found that management had
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1),
SHRS issued the Letter of Admonishment because Complainant worked overtime without
supervisory authorization, altered an established training schedule without authorization, failed
to follow instructions, and misrepresented his workload when requesting annual leave. With
respect to claim (2), Complainant was issued the Letter of Counseling on August 5, 2009,
because he was failing to meet the performance standards in the critical elements entitled
"Customer Service," "Technical Expertise," and "Timeliness." Complainant submitted
incorrectly completed DEU certificate requests, as well as errant vacancy announcements that
lacked the “how to apply” procedures. In addition, Complainant was both non-responsive and
gave untimely responses to inquiries from other staff members regarding the status of a re-
announced vacancy. Complainant also failed to adequately monitor his workload and
frequently completed assigned work only after receiving a reminder from his supervisor and
after the expiration of the deadline. Complainant was assigned to conduct training for

1 Complainant attempted to amend his complaint to include a claim regarding a four-day
suspension. The Agency determined that this claim was not like or related to the claim raised
in the complaint and referred the claim for separate counseling.
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managers, but failed to notify managers of the scheduled training sessions. Complainant
worked overtime to complete work that was not yet due; but neglected to finish an assignment
due for completion on an earlier date.

Regarding claim (3), Complainant was charged AWOL on August 6 and 7, 2009, because he
failed to bring in documentation substantiating his absences as he had been instructed. With
respect to claim (4), Complainant received numerous negative comments on his “Fully
Successful” performance appraisal based on his subpar performance in each of the critical
areas of his position description. In the area of customer service, Complainant had yet to
demonstrate the ability to adapt to a complex, high pressure, changing, work environment.
Management further noted that he had not demonstrated the ability to manage high priority
workloads. In the area of technical expertise, Complainant did not fully demonstrate a
practical knowledge of an extensive body of specialized HR policies and processes and their
application. AHRO explained that although Complainant was rated as fully successful for the
current position, he was still at a training developmental level and he was not yet
demonstrating that he had the capability yet to be working at the next level.

As to claim (5), Complainant was issued the April 6, 2010 Letter of Reprimand for
unacceptable conduct when he became argumentative with his supervisor and later left the
office without notifying her that he had completed the assignment in question. In addition,
Complainant requested leave without giving his supervisor adequate notice of his impending
absence. Finally, the reprimand included a charge of a lack of candor involving Complainant's
repeated failure to provide a forthright explanation for not entering two incoming employees
into a data base. Regarding claim (6), Complainant was placed on a PIP based on identified
incidents of failure to timely complete time sensitive tasks involving newly hired employees
and failure to properly process the posting of vacancy announcements. Contrary to
Complainant's assertions that he had no notice or knowledge of the issues raised in the PIP,
both S1 and her predecessor consistently communicated with Complainant both verbally and
via email regarding his work performance, deadlines, and the need for him to follow specific
instructions.

As to claim (7), Complainant received an “Unsatisfactory” mid-year rating based on several
incidents of Complainant's failure to perform his duties with respect to vacancy announcements
and new employee selections. The notice listed the period beginning November 19, 2009 and
ending December 8, 2009, as the time during which he failed to adapt to changing priorities,
or to demonstrate the ability to handle multiple tasks simultaneously so as to ensure the
completion of time sensitive tasks. S1 explained that only she signed Complainant's appraisal
because Agency policy only requires the signature of the first line supervisor on a mid-year
rating.

According to Complainant, management asked him to leave a meeting, but allowed co-workers
with less time in the office to remain. Management explained that some workers had less
seniority than Complainant, but had progressed further in terms of performing their assigned
duties. In addition, Complainant alleged that in his absence, management removed assigned
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work from his desk and re-assigned it without replacing it with more work. Management
explained that in many instances Complainant either was on leave and had left time sensitive
work undone, or Complainant's supervisor had taken the work in order to perform necessary
corrections.

With respect to Complaint Two, Management articulated legitimate, nondiscriminatory reasons
for not selecting Complainant to fill the positions of Program Assistant and Program Analyst.
The Selectees for both positions earned significantly higher overall scores than Complainant.
Selectee 1 outscored Complainant by more than 1000 points, while Selectee 2 earned more
than twice the points earned by Complainant. Panel members explained that although
Complainant demonstrated excellent interpersonal effectiveness and personal mastery, and
scored high in customer service, flexibility/adaptability, and creative thinking, he was not as
strong as the Selectees in technical skill. They further noted that the examples given by
Complainant during the performance based interview process were not on the same level as the
Selectees.

Finally, with respect to Complaint Three, management articulated legitimate,
nondiscriminatory reasons for setting Complainant's salary. Management explained that
Agency reinstatement salary policy is to set pay based on an assessment of all the appropriate
factors applicable to an individual applicant's previous federal employment history and
qualifications directly related to the position offered. The pay rate analysis, as requested by
Complainant, determined that Complainant’s U.S. Postal Service experience was not directly
related to the duties of the HR Clerk position. In addition, Complainant did not have a
background in HR-related duties. Additionally, in contrast to the comparator employee who
had recent customer support experience in the Postal Service, Complainant was returning to
Federal employment after a decade long break in service.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretext for unlawful discrimination or reprisal. In addition, as to Complainant’s
hostile work environment claim, the Agency determined that the alleged incidents were not
sufficiently severe or pervasive to establish a hostile work environment. As a result, the
Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AWOL charge in Complaint One was unwarranted
because he spoke with his supervisor that day. Further, Complainant contends that the Letter
of Admonishment and Letter of Counseling issued on the same day were simply used to
establish a foundation for more aggressive disciplinary action in the future. Regarding
Complaint Two, Complainant claims that management failed to properly follow hiring rules
and regulations as to the GS-9 position and the record is unclear as to who was the second-
highest scoring candidate as to the GS-5/6 position. Finally, as to Complaint Three,
Complainant questions whether the pay rate process that he was subjected to was applied to
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others employees. Complainant argues that management’s statements and assertions are
unworthy of belief. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its action. As to Complaint One, Complainant received the
Letter of Admonishment based on several conduct and performance-related issues including
working unauthorized overtime, altering an established training schedule without authorization,
failing to follow instructions related to vacancy announcements, and misrepresenting his
workload when requesting annual leave. ROI1, at 177, 440. The Letter of Counseling was
issued to inform Complainant that he was failing to meet his performance standards in critical
elements and was based on similar issues as the Letter of Admonishment. Id. at 178, 243.
Complainant was charged AWOL for August 6 and 7, 2009 because he failed to submit
documentation in support of his absence. Id

. at 178-79.
Complainant was rated as “Fully Successful,” but with several negative comments because
management believed he was performing fully successful at the GS-5 grade level, but he was
not demonstrating that he had the ability to perform at the next level. ROI1, at 169, 223-27.
Complainant was issued the Letter of Reprimand based on his conduct after his supervisor
asked him to complete a task by 3:00 p.m. and to inform her when it was completed.
Complainant confronted his supervisor and ignored a direct order to notify her upon
completion of the task. Id. at 478. In addition, Complainant showed a lack of candor as to his
repeated failure to provide a forthright explanation for not entering two incoming employees
into a database. Id. Complainant stated that he had taken care of the situation, but ultimately
admitted to his supervisor that he had not forwarded the new employees’ packet to HR. Id.
Finally, Complainant received an “Unsatisfactory” Special Rating of Record and was
subsequently placed on a PIP based on several documented performance deficiencies in the
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critical elements “Customer Service,” “Technical Expertise,” and “Timeliness.” Id. at 164,
488-492. Despite Complainant’s contentions otherwise, S1 stated that Complainant had notice
that his performance was deficient, but would often ignore her attempts to communicate. Id

. at
164-65.
With regard to Complainant’s hostile work environment claim alleged in Complaint One, the
Commission notes that, to prove his harassment claim, Complainant must establish that he was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself. The Commission finds that the alleged incidents at issue in their totality are
insufficiently severe or pervasive to establish a hostile work environment. In addition, as
discussed above, Complainant failed to show that the alleged incidents were based on
discriminatory or retaliatory animus.

With respect to the non-selections alleged in Complaint Two, the Commission finds that
although Complainant was qualified for the positions at issue, he has not refuted the Agency’s
explanation that the selectees scored the highest after the interviews and had stronger technical
skills. ROI2, at 138. Despite Complainant's assertions, he has failed to show that his
qualifications were plainly superior to those of the selectees. The selectees had attributes that
justified their selection, and panel members affirmed that they believed the selectees were
better equipped to meet the Agency's needs. In the absence of evidence of unlawful
discrimination, the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine

, 450 U.S. at 259.
Finally, as to Complaint Three, the Director explained that Agency policy is to set pay based
on an assessment of all the appropriate factors applicable to an individual applicant's federal
employment history and qualifications directly related to the position offered. ROI3, at 65.
The Director affirmed that utilizing the highest previous rate analysis was not appropriate in
Complainant’s case because Complainant had a break in service of over 10 years and his
experience with the U.S. Postal Service was not directly related to his duties as an HR Clerk.
Id

. at 64
As Complainant chose to withdraw his hearing request, the Commission does not have the
benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant's protected classes were a factor in
any of the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that he was subjected to discrimination, reprisal, or harassment as alleged.

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CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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 written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 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”
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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:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 24, 2015