Valentin P.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 31, 2017

0120150007 (E.E.O.C. Jan. 31, 2017)

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

Valentin P.,1
Complainant,

v.

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

Appeal No. 0120150007
Agency No. 200P07852014100016

DECISION

On September 24, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 26, 2014, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Dietician
Cook, GS-5 at the Veterans Canteen Service (VCS) located in Mather, California. On October
29, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against
him on the basis of race (Black) when on August 31, 2013, he was terminated from his
position.

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 EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), 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.

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.
0120150007

2
FACTUAL BACKGROUND

On July 5, 2013, Complainant was issued a Notice of Proposed Removal from his position as a
Cook based on the charge of “[e]mployee generated disruptive behavior.” The undisputed
record reflects that the “disruptive behavior” referenced in the proposed termination letter
stemmed from an incident on July 2, 2013, where Complainant and a co-worker (Caucasian)
engaged in a loud and aggressive verbal altercation in the presence of customers and other
staff. C1 was heard threatening Complainant with a gun. Complainant was heard stating, “Go
ahead, I dare you.” or words to that effect. Although an attempt was made to deescalate the
situation by another Cook (C2), Complainant continued to argue with C1 using inappropriate
language. Complainant’s behavior was perceived as threatening and creating a hostile work
environment for his co-workers. The incident was reported to Agency police who conducted
an investigation. Both employees were placed on administrative leave pending the outcome of
the investigation.

Complainant was given the opportunity to respond to the Notice of Proposed Removal. In his
response, Complainant acknowledged that words were exchanged in a loud manner and he
expressed his deep regret for the exchange. Complainant denied that C1 threatened him with a
gun or words to that effect. Complainant also acknowledged that he continued to argue with
the co-worker when C2 intervened. Complainant apologized for his actions and accepted full
responsibility for his behavior. Complainant asserted, however, that his behavior did not
warrant his removal.

On August 26, 2013, Complainant was notified by the Regional Manager for the VCS (RMO)
that the charge was sustained and he would be terminated effective August 31, 2013. In the
removal letter, RMO cited the factors that were taken into consideration in sustaining the
removal, including Complainant’s acknowledgement of his responsibility, his prior years of
service, his past work record, and the severity of the offense and mitigating factors. The letter
also cited the Agency’s zero-tolerance policy towards violence in the workplace, and
Complainant’s past disciplinary history. C1 was also terminated effective August 31, 2013.

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”). We note that Complainant did not submit any argument in
support of his appeal.

0120150007

3
We agree with the Agency in finding that the preponderance of the evidence shows that the
Agency articulated a legitimate, non-discriminatory reason for terminating Complainant which
was not shown to be pretext or otherwise motivated by racial animus. Complainant asserts that
his termination was based on his race because his supervisor did not like him. Complainant
states that at times his supervisor made derogatory comments about his tattoos and clothing and
would tell Complainant that he was presenting himself as a ghetto individual and “looked like a
thug” because he was showing his tattoos. However, other than Complainant’s bare
uncorroborated assertions, the record does not reflect that the Agency’s actions were motivated
by racial discrimination. Rather, the record establishes that the Agency’s actions were based
on its zero-tolerance policy for violence in the workplace. Moreover, the record reflects that
both employees, of different races, were terminated as a result of the incident.

CONCLUSION

Accordingly, based on a thorough review of the record we AFFIRM the Agency’s decision
which finds insufficient evidence of discrimination.

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.

0120150007

4
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
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

January 31, 2017
Date