[Redacted], Gregg Y., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 10, 2022

Appeal No. 2020004539 (E.E.O.C. Feb. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregg Y.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004539 Hearing No. 550-2018-00142X Agency No. 200P-0785-2017102132 DECISION On June 19, 2020, 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 June 2, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Food Service Supervisor, NS-7408-06, at the Agency’s Northern California VA Health Care System in Martinez, California. He was promoted to this position on April 3, 2016, for a period not to exceed (NTE) April 2, 2017. See Report of Investigation (ROI) at 202. On February 24, 2017, the Chief of the Veterans Canteen Service notified Complainant that his NTE appointment would expire at close of business on March 19, 2017. Id. at 203. Following the conclusion of his NTE appointment, Complainant returned to his previous position as a Lead Cook. Id. 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. 2020004539 2 On June 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. Following Complainant’s request to amend, the Agency accepted the following claims for investigation:2 1. In October 2015, the Assistant Chief, Canteen Service, denied Complainant the opportunity to apply for a Vending Clerk position that was created for a close friend of the Assistant Chief; 2. In December 2015, the Assistant Chief failed to take the appropriate corrective action after Complainant reported that an employee made the comment that he is “ghetto.” The Assistant Chief responded with, “Oh, people aren’t ghetto”; however, she did not address the issue; 3. In April 2016, management officials failed to include him while he served as a supervisor on any of his subordinates’ performance reviews; 4. On or about January 10, 2017, Complainant learned that the Assistant Chief had questioned an employee about what Complainant and another African American male employee were doing on Saturday and how long they were away from the facility; 5. In February 2017, while Complainant was walking through the kitchen area to the breakroom, the Assistant Chief told Complainant, “You need to set an example and to wear the proper hat”; 6. On February 24, 2017, Complainant discovered that he would be demoted from his position when the Assistant Chief sent an email to Complainant’s personal email account, stating, “Hi, are we telling [Complainant] we are demoting him or doing away with the position?”; 7. On February 24, 2017, the Agency officially informed Complainant that his Food Service Supervisor position (NS-6/3) was being eliminated and that he would be demoted to a Lead Cook (NL-5/5) position, which was effective on March 19, 2017. Complainant’s demotion to the Lead Cook (NL-5/5) position reduced his hourly pay by $2.00; 8. On or about July 14, 2017, the Assistant Chief issued Complainant a written counseling; and 2 The Agency notified Complainant that it would only investigate claims 1-3, as part of Complainant’s hostile work environment claim, as these claims were not timely raised. The accepted claims 7, 8, and 9 for investigation as independent discrete events. See Notice of First Amendment of “Mixed Case” Complaint No. 200P-0785-2017102032, Filed on June 6, 2017, dated September 6, 2017. 2020004539 3 9. On August 8, 2017, the Assistant Chief denied Complainant’s annual leave request for August 14 and 15, 2017, which he submitted on July 18, 2017. By letter dated November 29, 2017, the Agency informed Complainant that it had completed the EEO investigation into his complaint and provided him with a copy of the ROI. In issuing the letter, the Agency advised Complainant that he had different appeal rights for the mixed and non- mixed portions of his complaint. With regard to the mixed portion, concerning Complainant’s demotion claim, the Agency informed Complainant that it would issue a final agency decision (FAD) on the merits of that claim within 120 calendar days and provide him with appeal rights to the Merit Systems Protection Board (MSPB). The Agency emphasized that Complainant could independently file an appeal with the MSPB if the Agency failed to issue a FAD within 120 calendar days. As for remaining claims (i.e., non-mixed claims), the Agency provided Complainant with notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (EEOC AJ). Complainant ultimately elected a hearing before an EEOC AJ on the merits of his non-mixed claims. He subsequently filed a separate appeal with the MSPB when the Agency failed to issue a FAD on his demotion claim within 120 calendar days. While Complainant’s MSPB appeal was pending, the EEOC AJ assigned to the matter issued a Show Cause Order on January 29, 2018, ordering the parties to show cause as to why the complaint should not be returned to the Agency for lack of jurisdiction. On February 12, 2018, the assigned MSPB AJ issued an initial decision dismissing Complainant’s appeal for lack of jurisdiction. That same day, the Agency filed a response to the EEOC AJ’s Show Cause Order, wherein the Agency requested that the EEOC AJ retain jurisdiction of the complaint and process the demotion claim along with Complainant’s other claims. In response to the Agency’s filing, the EEOC AJ amended the complaint to include the following claim: 10. Whether Complainant was demoted from his position as a Food Service Worker Supervisor on March 19, 2017, based on race (African American) and reprisal for prior EEO activity. Thereafter, the Agency filed a motion for a decision without a hearing in favor of the Agency. In its filing, the Agency first addressed Complainant’s demotion, concerning claims 6, 7, and 10. In arguing that Complainant’s demotion was not discriminatory, the Agency maintained that the undisputed record clearly showed that Complainant’s appointment to the Food Service Supervisor position was temporary. The Agency explained that in the months following Complainant’s temporary appointment, the Assistant Chief determined that the Canteen Service did not need two Food Service Supervisors and made the decision to end Complainant’s NTE appointment as scheduled. 2020004539 4 While the Agency acknowledged that Complainant had named three comparators during the EEO investigation who were allegedly treated more favorably than him, the Agency emphasized that these individuals were not similarly situated to Complainant because they occupied non- supervisory positions in the bargaining unit, whereas Complainant temporarily occupied a position in the non-bargaining management ranks. Furthermore, the Agency noted that these individuals were also retuned to their permanent positions at the conclusion of their temporary appointments. See Agency’s Motion to Issue a Decision Without a Hearing Pursuant to 29 C.F.R. § 1614.109(g), dated October 30, 2018. With regard to claims 5 and 8, concerning Complainant’s personal baseball cap, the Agency maintained that the Assistant Chief had legitimate nondiscriminatory reasons for ordering Complainant to remove his cap while in the kitchen area, as it was against the rules to do so. The Agency asserted that the Assistant Chief did not act discriminatorily when she issued Complainant written counseling for failure to comply with the directive. The Agency further emphasized that the written counseling was not based solely on Complainant’s refusal to remove his cap, but also for other reasons, such as refusing to help his coworker. Id. Concerning claim 9, the Agency asserted that the record clearly showed that the Assistant Chief regularly granted Complainant’s requests for leave, except for a few occasions when leave was denied for lack of coverage reasons. The Agency maintained that the record was devoid of any evidence of discriminatory animus. Id. The Agency then turned to claim 1. As the Agency’s EEO Office had previously found that claim to be untimely raised, the Agency’s motion addressed Complainant’s non-selection claim solely under the legal standard for hostile work environment. With regard to this claim, the Agency maintained that Complainant was not denied the opportunity to apply for the position at issue and emphasized that Complainant was not treated differently because of his race or prior protected EEO activity. As for the remaining claims, the Agency maintained that the alleged incidents, even if true, were not sufficiently severe or pervasive to constitute a hostile work environment. Id. Complainant timely opposed the Agency’s motion. In opposing the Agency’s motion, Complainant initially argued that “[t]he allegations 2, 4-10 are timely, and allegations 1 and 3 are on the basis of the fact that [the] Agency’s discriminatory and retaliatory practice was one of ongoing and continuous in nature.” Complainant then recounted his allegations and emphasized that the alleged incidents did in fact occur in the manner that he described during the EEO investigation. Finally, Complainant again pointed to the three individuals whom he previously named as comparators as evidence of disparate treatment. See Complainant’s Response dated October 31, 2018. The Agency subsequently filed a reply, which, in relevant part, reemphasized that Complainant’s comparators were not similarly situated to him. The Agency characterized Complainant’s arguments as non-probative, as his arguments did not establish that discrimination occurred. 2020004539 5 See Agency’s Reply to Response to Motion to Issue a Decision Without a Hearing Pursuant to 29 C.F.R. § 1614.109(g) dated November 1, 2018. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s October 30, 2018, motion for a decision without a hearing and issued a succinct decision without a hearing on May 28, 2020. In issuing the decision, the AJ adopted the facts and analysis contained in the Agency’s motion. 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. This appeal followed. In support of his appeal, Complainant resubmits his response to the Agency’s motion for a decision without a hearing for the Commission’s review. The Agency opposes the appeal and requests that the Commission affirm its final order. 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 “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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020004539 6 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). 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). 2020004539 7 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 10, 2022 Date