[Redacted], Antwan N., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 14, 2022

Appeal No. 2021000479 (E.E.O.C. Feb. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Antwan N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000479 Hearing No. 440-2018-00159X Agency No. 200J-0609-2016102253 DECISION 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 September 23, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Housekeeping Aide Supervisor (night shift), WS-3566-5, at the Agency’s VA Medical Center, Environmental Management Service, in Marion, Illinois. On March 1, 2016, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (African American), color (Black), and in reprisal for prior protected EEO activity2 when on February 12, 2016, Complainant was notified of his non- 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 Complainant contacted the EEO office in 2013 regarding his request to transfer to the day shift after the same management official identified in the instant complaint denied Complainant’s 2021000479 2 selection for the position of Housekeeping Aide Supervisory (day shift), WS-3566-03, Announcement No. MRN-MPA-16-16033821-INT. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. However, on November 28, 2018, the assigned AJ dismissed the complaint on procedural grounds. Thereafter, the Agency issued a December 21, 2018 final order implementing the AJ’s dismissal. On appeal, the Commission reversed the AJ’s dismissal and remanded the complaint to the Hearings Unit of the Milwaukee Area Office for further processing. See EEOC Appeal No. 2019002112 (Jan. 22, 2020). Specifically, the Commission reversed the AJ’s finding that Complainant’s complaint was moot and failed to state a claim. On remand, Complainant subsequently withdrew his hearing request and the assigned AJ issued a March 11, 2020 order remanding the complaint to the Agency for a final decision. On September 23, 2020, the Agency issued the instant final decision finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service request. The matter was resolved during a 2014 mediation. Moreover, Complainant initiated informal EEO counseling in a separate complaint which closed on September 14, 2016, and Complainant filed another complaint that was adjudicated by the Agency on October 17, 2018. 2021000479 3 Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency provided legitimate, non-discriminatory reasons for not selecting Complainant for the position at issue. The Selecting Official (SO) acknowledged that Complainant first requested placement in the day shift in June 2012. However, the SO explained that he denied the request at the time because the SO only had two supervisors (one day shift supervisor and one evening shift supervisor). The SO further explained that normally, he would have had four supervisors, but he only had two supervisors, which resulted in Complainant covering the evening shift and another employee covering the day shift. However, the SO indicated that he intended to grant Complainant’s request after he had backfilled the other evening shift position. Thereafter, Complainant indicated that in December 2013, he again requested placement in the day shift position which the SO denied. Complainant and five other candidates applied for the Housekeeping Aide Supervisory (day shift), Announcement No. MRN-MPA-16-16033821-INT, position that opened on January 21, 2016. Complainant and the Selectee were the only two candidates referred by Human Resources to the SO for consideration as interviews were not conducted. The SO testified that the application process requested, in pertinent part, that candidates provide responses to questions regarding their Knowledge, Skills, and Abilities (KSA) related to the position. However, the SO noted that Complainant did not answer any of five KSA questions. In contrast, the SO stated that the Selectee provided detailed KSA answers. Although the SO acknowledged that Complainant was a supervisor while the selectee was a team lead, the SO explained that he based his decision to choose the Selectee because the Selectee, unlike Complainant, submitted a complete application. Following Complainant’s non-selection, the SO stated that he called Complainant on February 19, 2016 to discuss switching Complainant to the day shift. However, the SO indicated that Complainant announced that he did not want to discuss the matter as he had already filed an EEO complaint against the SO. The record nevertheless reflects that Complainant was ultimately transferred to the day shift position in June 2017. We note that the record includes copies of the SO’s notes regarding each candidate’s application. Specifically, the SO’s notes stated that “Screening criteria included Resume and supporting document review with emphasis on responses provided to the listed KSAs for the position.” Regarding the Selectee, the SO stated, that the SO’s “responses were detailed, comprehensive and displayed knowledge of the job requirements. The only other applicant for this position failed to answer the KSAs. I am selecting [the Selectee] for this position.” Regarding Complainant, the SO stated, that Complainant “did not provide any response to the KSAs and the resume was very generic.” 2021000479 4 After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, color, or reprisal for prior protected EEO activity CONCLUSION We 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021000479 5 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 February 14, 2022 Date