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

Equal Employment Opportunity Commission

Aug 10, 2022

Appeal No. 2021002826 (E.E.O.C. Aug. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ricardo K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002826 Hearing No. 420-2020-00327X Agency No. 2003-0520-2020101888 DECISION On April 15, 2021, 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 March 16, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant at the Agency’s Pensacola Health Clinic in Pensacola, Florida. On February 10, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him, and subjected to a hostile work environment, on the bases of race (Caucasian) and disability (physical) when: 1. In December 2018, management falsely told the complainant that no GS-6 positions were available at the Pensacola VA Medical Center which caused him to accept a GS- 5, Step 5 position; 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. 2021002826 2 2. Management failed to provide Complainant appropriate training, an initial counseling statement, a copy of the standard operating procedures, a copy of job expectations, or the necessary access codes for the performance of his job duties; 3. On May 8, 2019, Supervisor failed to take appropriate action when Coworker said that that Complainant was being a troublemaker and needed to go away; 4. From August 30, 2019 thru December 30, 2019, management sent Complainant’s correspondence to the wrong mailing address despite him updating his mailing address; 5. On December 6, 2019, Business Office Supervisor terminated Complainant from federal service and did not notify him until December 30, 2019, when he was on approved Family and Medical Leave Act (FMLA). 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 22, 2021, motion for a decision without a hearing and issued a decision without a hearing on March 16, 2021. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).2 The instant appeal followed. 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). 2 The Agency accurately noted in its brief that Complainant filed for appeal before the Agency issued its final decision, and prior to 40 days expiring. Forty days have now elapsed since the issuance of the Administrative Judge’s (AJ’s) final decision and order without an Agency final decision. The Commission has held there is no regulatory provision that sets a specific time limitation for filing an appeal in circumstances such as this wherein an AJ's decision becomes final by operation of 29 C.F.R. § 1614.109(i). See Armand C. v. Dep’t of Def., EEOC Appeal No. 2020004406 (Dec. 13, 2021) citing Avery S. v. Dep't of the Treasury, EEOC Request No. 2020000221 (Jan. 22, 2020). Once the Agency failed to issue a final order within 40 days of the AJ's decision, the AJ's decision became, by operation of law, the Agency's final action on February 19, 2020, notwithstanding its subsequent untimely issued final order. 29 C.F.R. § 1614.109(i). As such, the AJ’s order is final, and the appeal is timely. 2021002826 3 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 Emp’t Opportunity Mgmt. Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (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. To the extent that Complainant asserts that he was not afforded the opportunity to present sufficient evidence at a hearing, Complainant did not specifically identify the evidence that he was precluded from submitting and how this would give rise to dispute of a material fact. To the extent that he argues that there are disputed facts, the Commission finds no evidence of material facts in dispute. That is, even if these facts as asserted by Complainant were true, it would not affect the outcome of the case. As such, the Commission finds that Complainant has failed to establish a dispute of material fact that would warrant a remand for a hearing before an AJ. 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. To the extent Complainant argues that Supervisor did not act when “Coworker” stated that Complainant was being a “troublemaker” and “needed to go away,” the Commission finds that this was not an employment action. In this situation, Complainant conceded that “Coworker” was acting in the capacity of his primary care physician and this involved a dispute between his primary care physician and a urologist as to the appropriate course of his treatment. ROI at 72. Concerning Complainant’s claim that the Agency should have been aware as to his change of address, even assuming, without so finding, that this assertion is true, Complainant has not demonstrated that the Agency acted out of discriminatory animus as opposed to simple mistake. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus); Bodalia v. Dept. of Vet. Affs., EEOC Appeal No. 01955275 (Aug. 27, 1997) (affirming that poor management by an Agency is not, in and of itself, evidence of discrimination). In this case, there is no corroborated evidence of unlawful motivation for the Agency’s actions. 2021002826 4 Ultimately, a Complainant must prove, by a preponderance of the evidence, that the agency’s articulated reason for its action was not its true reason, but a sham or pretext for unlawful discrimination. See Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 259 (1981); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). The Commission finds that Complainant has, ultimately, presented no evidence in support of his claims of discrimination aside from his own subjective beliefs, assumptions, and inferences. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The Commission finds that the file is devoid of such evidence in this case. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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. 2021002826 5 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). 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. 2021002826 6 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 August 10, 2022 Date