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

Equal Employment Opportunity Commission

Sep 28, 2015

01-2013-2189-0500 (E.E.O.C. Sep. 28, 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. 0120132189

Hearing No. 570-2012-00521X

Agency No. 2004-0116-2011103565

DECISION

Complainant filed an appeal from the Agency’s April 29, 2013 final order concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 et seq. The Commission deems the appeal timely and accepts it for de novo review
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

Complainant worked as a Director of Enterprise Security Solution Services (ESSS) at the
Agency’s Headquarters in Washington, DC. On September 19, 2011, he filed an EEO
complaint in which he alleged that the Principal Deputy Assistant Secretary for Information
and Technology (PDASIT) subjected him to a hostile environment between June and August of
2011, because of his race (African-American) and disability (unspecified neck, back, knees,
and mental health conditions). He also alleged that his first-line supervisor, the Director of
Client Service (DCS), and his second-line supervisor, the Director of Field Security Services
(DFSS) retaliated against him for having filed a prior EEO complaint by giving him a
performance rating of “fully successful” on November 17, 2011

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an Equal
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Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. When Complainant did not object, the AJ assigned to the case granted the
Agency’s February 1, 2013 motion for summary judgment and issued a decision on April 8,
2013, without holding a hearing. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination
as alleged.

The essence of Complainant’s harassment claim is that he was excluded from discussions
concerning an organizational realignment pursuant to which the ESSS would be moved from
the Office of Information Security to the Office of Information and Technology. IR 440-41,
630. Complainant averred that he not been invited to a kick-off meeting, that his input had not
been sought, and his consent not obtained, and that as a result, his subordinates broke their
chain of command and went directly to higher-level managers with their issues. IR 342-43,
345, 347, 350, 352, 354-55, 360-62, 366, 630-31. Complainant himself acknowledged,
however, that he was not at a high enough managerial level within the organization to
participate in the planning and execution of the realignment. IR 342, 613, 628-29, 631-33,
636, 638-39, 674. As to Complainant’s subordinates going around him, the Deputy Assistant
Security for the Office of Information Technology averred that when a memorandum
explaining the realignment and directing managers to distribute the information to their staff
was issued, Complainant refused to accept the memorandum and refused to provide it to his
staff, as directed. Complainant’s first-line supervisor ultimately provided the memorandum to
Complainant’s subordinates. IR 631-33.

As to Complainant’s performance appraisal issue, Complainant received an evaluation of “fully
successful” for his performance during Fiscal Year (FY) 2011. IR 373-74, 721-22. He
received a rating of outstanding for FY 2010, while working under a different supervisor. IR
707-08. The DFSS and the DCS both averred that they rated Complainant based on their
observations of his performance during the 90-day time frame that he was actually under their
supervision, and that they found no performance deficiencies. IR 645-46, 659-60.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s actions involving personnel unless there is
evidence of a discriminatory motivation on the part of the officials responsible for those
actions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Therefore, in order to warrant a hearing on his claims of hostile environment and reprisal,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether the PDASIT, the DFSS, or the DCS were motivated by unlawful considerations of
his race, disabilities, or previous EEO activity in connection with the incidents described in his
complaint. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

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Complainant can satisfy his burden by presenting evidence of discriminatory statements or past
personal treatment attributable to the PDASIT, the DFSS, or the DCS, comparative or
statistical data showing differences in treatment across racial or disability lines, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. If
Complainant fails to raise a genuine issue of material fact concerning the existence of
discriminatory intent on the part of the PDASIT, the DFSS, or the DCS, no further inquiry
would be necessary as to whether the incidents complained of are severe or pervasive to rise to
the level of harassment or constitute separate acts of discrimination under disparate treatment
theory.

When asked by the investigator why he believed that his race, disabilities, or previous EEO
activity were motivating factors in the incidents at issue, Complainant did not present evidence
of any of the indicators of discriminatory or retaliatory motive described above. He has not
presented any sworn statements from other witnesses or documents that contradict the
explanations provided by the PDAST, the DFSS, or the DCS, or which call their veracity into
question. Rather, he responded with vague and conclusory statements such as, “I am the only
disabled black male in the organization,” or words to that effect. IR 342-43, 347, 351, 353-
55, 361, 367, 375-76. When asked, whether he was aware of any direct evidence of
discrimination as it related to his race or disability, Complainant answered, “no, only their
adverse and disparate treatment as well as actions against me.” IR 368, 376. In other words,
Complainant appears to be arguing that the acts themselves constitute evidence of motive. This
is not true. More is required to raise a genuine issue of material fact on whether an unlawful
motive exists than merely expressing one’s belief that it is so. We therefore agree with the AJ
that no genuine issue of material fact exists with respect to any of the incidents comprising
Complainant’s claims of hostile work environment or reprisal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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:

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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 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, 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 (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
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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.
Carlton M. Hadden, Director
Office of Federal Operations

September 28, 2015
Date