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

Equal Employment Opportunity Commission

Sep 30, 2022

Appeal No. 2021005000 (E.E.O.C. Sep. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregorio S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021005000 Agency No. 20DR-0010-202110839 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 August 26, 2021, final decision 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Education Program Specialist, GS-1720-14, at the Agency’s facility in Washington, D.C. On February 1, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on retaliation for prior protected EEO activity when: 1. On November 6, 2020, Complainant’s first line supervisor, the Acting Chief Learning Office, issued Complainant a “Fully Successful” performance rating for fiscal year (FY) 2020; and 2. On December 6, 2020, Complainant’s second line supervisor, the Chief, Human Capital Management, sustained Complainant’s “Fully Successful” rating and 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. 2021005000 2 indicated that she found Complainant’s self-assessment and supporting documentation inadequate to support a higher performance rating.2 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). After a review of the record, we find that Complainant failed to prove by the preponderance of the evidence that he was discriminated against as alleged. Even assuming Complainant could establish a prima facie case of discrimination, he failed to show that the Agency’s reasons for its actions were pretext for discrimination. The evidence shows that during Complainant’s midyear progress review, his former first line supervisor (FS1) indicated that he was performing at the outstanding level. FS1 retired on September 30, 2020. Upon FS1’s retirement Complainant was assigned a new first line supervisor (S1). S1 conducted Complainant’s performance evaluation for FY 2020 and assigned a “fully successful” rating. 2 The Agency’s final decision noted that the complaint raised a claim of “resume fraud” and dismissed the claim for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency also dismissed a claim related to alleged statements made by Agency management during settlement negotiations. On appeal, Complainant asserts that the Agency mischaracterized these two claims and that he did not intend these to be separate claims. As such, these issues will not be addressed herein. 2021005000 3 Complainant requested that S1 change his rating to outstanding based on FS1’s midyear review. S1 stated that she would reconsider the rating if he could provide documentation to support a higher rating. Complainant opted to seek reconsideration from S2. S2 concurred with the “fully successful” rating. Complainant alleges that S1 and S2 were retaliating against him for two formal EEO complaints he filed in 2020. Complainant asserts that S1 should have rated him according to FS1’s recommendation since she did not supervise him during the fiscal year and did not have knowledge of his work performance. S1 asserted that she provided Complainant a fully successful evaluation based on Agency policy regarding performance appraisals, Complainant’s self-assessment, and FS1’s midyear assessment. S1 further stated that prior to the performance review meeting with Complainant, she consulted Resource Management to determine if she could assign Complainant an exceptional/outstanding rating based solely on FS1’s recommendation. S1 asserted that Resource Management advised her that since FS1 did not provide any documentation besides his statement, that she would need documentation to support an exceptional/outstanding rating. S1 asserted Complainant did not provide the necessary documentation for a higher evaluation. S2 stated that in her reconsideration of Complainant’s FY 2020 evaluation she considered FS1’s midyear assessment, S1’s rating official narrative, Complainant’s October 2020 self-assessment, and an additional November 2020 self-assessment submitted as part of his request for a higher- level review. S2 stated she compared the self-assessments submitted against the performance standards in Complainant’s performance plan and found that for several elements, the documentation was not sufficient to support a fully successful evaluation and that the documentation was not sufficient to support a rating higher than fully successful for any of the elements. S2 noted that the Agency performance standards state, “Assignment of the Exceptional level means that Fully Successful performance standards have been significantly surpassed. This level is reserved for employees whose performance in the element far exceeds normal expectations and results in major contributions to the accomplishment of organizational goals.” She stated that although Complainant listed examples of tasks completed for each element, he did not provide supporting documentation that showed he met the criteria for an outstanding rating. Based on this, she declined to issue a rating higher than fully successful. We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. Complainant has not provided any evidence other than her own opinion that management was motivated by discriminatory retaliation. Complainant also alleges S1 gave him a “fully successful” performance rating because she opposed a project completed during FY 2020 under the direction of FS1 that she did not approve of. Even if true, this does not indicate S1 was motivated by discriminatory retaliation. 2021005000 4 Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). Complainant has not shown that there were employees without prior EEO activity that were treated more favorably regarding performance appraisals. As such, the evidence does not show that Complainant was subjected to reprisal as alleged. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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). 2021005000 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 September 30, 2022 Date