Gale C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 25, 2016

0120141448 (E.E.O.C. May. 25, 2016)

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

Gale C.,1
Complainant,

v.

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

Appeal No. 0120141448

Hearing No. 520-2012-00004X

Agency No. 200H-0005-2011101179

DECISION

Complainant filed an appeal from the Agency’s February 6, 2014, final order concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et
seq. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist, GS-11, at the Agency’s work facility in Lyons, New Jersey.

On March 10, 2012, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the basis of his disability (blindness in one eye and limited vision
in the other eye) when on December 3, 2010, he was issued a “Fully Successful” performance
appraisal. This claim was accepted for investigation.

Complainant also claimed that he was subjected to retaliatory harassment when on February
25, 2011, the Supervisory Specialist demanded to see the work assignments given to him;
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.

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demanded that he meet with him after the staff meeting; cornered him in his cubicle and
screamed at him regarding work assignments and for not attending a morning meeting.
Complainant also claimed harassment when he received a memorandum dated April 1, 2011,
informing him that the Supervisory Specialist was gathering information and considering
disciplinary action against him. The Agency dismissed the claim of retaliatory harassment
pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim. The Agency
determined that the alleged actions were not sufficiently severe or pervasive to alter the
conditions of employment and create an abusive environment. The Agency further determined
that the matters at issue would not have a chilling effect or otherwise dissuade Complainant
from pursuing the EEO complaint process.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal 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 Motion for
Summary Judgment and issued a decision without a hearing on January 14, 2014.

The AJ found that no disability discrimination occurred. The AJ also found that the dismissal
of the retaliatory harassment claim was appropriate. The record reveals that Complainant was
on extended medical leave for five months during the 2010 rating period. Complainant
received a performance appraisal of “Fully Successful” for the 2010 rating period.
Complainant had received a performance appraisal of “Excellent, Highly Successful” for the
2009 rating period. Complainant was evaluated for the 2010 rating period by his third-level
Supervisor, the Assistant Chief, Office of Information and Technology. The AJ noted that the
Assistant Chief stated that she evaluated Complainant’s job performance in comparison to the
other employees of the same grade and job description. According to the Assistant Chief, all
of the GS-11 Information Technology Specialists, except Complainant, completed ten to fifteen
work orders per week servicing the computer equipment at the Lyons campus. The Assistant
Chief stated that Complainant averaged three completed work orders per week. During the
relevant time period, Complainant was provided 25% additional time to complete work orders
pursuant to a settlement agreement in a prior EEO case.

With regard to the performance ratings issued to the GS-11 Information Technology Specialists
for the 2010 rating period, one employee (non-disabled) received a rating of “Excellent” and
two employees (one non-disabled and Complainant) received ratings of “Fully Successful.” A
fourth Information Technology Specialist received a rating of “Excellent” but performed other
duties and did not fill work orders. The AJ observed that during the 2010 rating period,
Complainant completed an average of twenty work orders per month. The two non-disabled
Information Technology Specialists completed 39-40 orders per month on average. The non-
disabled Specialist who was rated “Excellent” was not marked “Needs Improvement” in any of
his performance elements. The non-disabled Specialist rated “Fully Successful” was marked
“Needs Improvement” in five of his performance elements. Complainant was marked “Needs
Improvement” in one of his performance elements, that being the element evaluating him on
his ability to follow through on assigned work orders.

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The AJ stated that the Agency’s explanation for Complainant’s “Fully Successful” rating in
2010 was that he was performing at that level and his performance did not warrant a higher
rating. The AJ noted the disparity in Complainant’s work order production in comparison with
the other Information Technology Specialists and the fact that Complainant was marked as
“Needs Improvement” in one of his performance elements. The AJ observed that the Agency
explained Complainant’s “Excellent, Highly Successful” rating in 2009 was the result of an
inexperienced acting supervisor issuing inappropriately high ratings to all of the Information
Technology Specialists. The AJ found that the Agency articulated legitimate,
nondiscriminatory reasons for rating Complainant “Fully Successful.”

The AJ observed that in attempting to establish pretext, Complainant acknowledged that his
productivity was substantially lower than that of the other Specialists for the 2010 rating
period. Complainant, however, argues that his performance was similar to that of 2009 when
he received a higher rating and no one informed him that his performance had declined in
2010. The AJ noted that the ratings for the Information Technology Specialists were generally
higher under the acting supervisor in 2009 than under the Assistant Chief in 2010. The AJ
stated that Complainant was provided with a greater period of time to complete his work orders
and was not penalized for his lower production as he received the same rating as a non-
disabled Specialist who was averaging 39 work order completions a month, and Complainant
also received a monetary performance award even though his production was only half that of
the other two Specialists. The AJ found that Complainant failed to refute the Agency’s
legitimate, nondiscriminatory reasons.

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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that during the 2010 rating period, he did not receive any
counseling or notice that his work performance had declined from the previous rating period.
Complainant states that during the 2010 rating period, there were no deficits in his
performance that were documented. According to Complainant, in the 2010 rating period, he
performed the same work in the same manner that he performed during the 2009 rating period.
Complainant maintains that disputed issues of genuine and material fact exist with regard to his
claim.

ANALYSIS AND FINDINGS

In the instant case, initially, we note that Complainant does not contest on appeal the Agency’s
dismissal of his retaliatory harassment claim. Therefore, we shall not further address that claim.

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is

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“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

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). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. 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); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). 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); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

The Commission finds that the AJ properly issued summary judgment as the material facts are
undisputed. The Commission agrees with the AJ that assuming arguendo Complainant is an
individual with a disability and that he established a prima facie case of disability discrimination,
Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory
reasons for its action. The Agency explained that Complainant’s productivity in completed work
orders was significantly below that of the other GS-11 Information Technology Specialists.
Complainant averaged twenty completed work orders per month and the other two GS-11
Information Technology Specialists averaged 39-40 completed work orders per month. While
Complainant was granted 25% more time to complete his assignments pursuant to a prior
settlement agreement, his productivity lagged behind his coworkers. We find that the Agency
articulated legitimate, nondiscriminatory reasons for issuing Complainant a “Fully Successful”
rating.

Complainant seeks to establish pretext by stating that he performed at the same level that he did
the prior year when he received a rating of “Excellent, Highly Successful.” Complainant further
argues that he was not informed during the 2010 rating period that his performance was
declining. We take note of the fact that Complainant was evaluated by different officials in the
two rating periods. The acting supervisor during the 2009 rating period acknowledged that he
was inexperienced in the position. The Assistant Chief explained that during the 2010 rating
period she issued to the relevant employees one rating of “Excellent” and two of “Fully
Satisfactory.” According to the Assistant Chief, the Information Technology Specialist who
received an “Excellent” rating completed approximately twice as many work orders per month as

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Complainant and had no elements marked “Needs Improvement.” The Assistant Chief explained
that “Fully Satisfactory” evaluations were issued to an Information Technology Specialist who
completed approximately twice as many work orders per month as Complainant but had five
elements marked as “Needs Improvement”, and to Complainant based on his low productivity
and the one element marked “Needs Improvement” concerning his ability to follow through on
assigned work orders. Complainant has not established that his performance during the 2010
rating period warranted a higher rating than “Fully Successful.” We find that Complainant has
not demonstrated that the Agency’s stated reasons for his “Fully Successful” rating were pretext
intended to hide discriminatory intent.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 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. The requests 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 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

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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

May 25, 2016
Date