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

Equal Employment Opportunity Commission

Feb 25, 2015

0120123444 (E.E.O.C. Feb. 25, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120123444

Agency No. 2003-01AL-2011103896

DECISION
On September 8, 2012, Complainant filed an appeal from the Agency’s August 13, 2012 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
The Agency employed Complainant as a Probationary Contracting Officer at its Center for
Acquisition Innovation (CAI) in Austin, Texas. On September 28, 2011, he filed an EEO
complaint in which he alleged that the Director and Deputy Director of the CAI, his second-
and third-line supervisors respectively (S2 and S3) discriminated against him on the bases of
race (African-American), sex (male), and age (55) by terminating him on May 27, 2011,
during his probationary period.

From the date he was hired in June 2010 until January 2011, approximately seven months,
Complainant was directly supervised by the Chief of Acquisition Products and Services (S1).
From January 2011 until he was fired, Complainant was supervised by three successive senior
contracting officers (CO1, CO2, and CO3).

On September 30, 2010, S1 rated his overall performance as minimally successful, noting his
rating of less-than-fully-successful in two of five critical performance elements: teamwork and
cooperation; and communication. IR 113-14, 122. On October 25, 2010, S1 issued
Complainant a memorandum of counseling for unacceptable performance, citing among other
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things his inability to follow instructions, his inability or refusal to convey his role to
customers, and his resistance to taking responsibility for his mistakes. IR 123-25. In a
summary rating that S1 issued just before he left, he noted that Complainant’s performance had
not improved. IR 115, 130. CO1, CO2, and CO3 were uniform in their collective assessment
that Complainant had been unable to work independently, that he accepted what customers
submitted without asking questions or recommending clarifications, that he did not respond to
customer needs, and that he only completed two of ten acquisitions assigned to him. IR 81-82,
91-92, 126, 128.

On March 2, 2011, CO2 reported that Complainant had made an inappropriate comment and
gesture to a female employee. S2 counseled Complainant on the matter and directed him to
retake a training course on workplace harassment, which he did. No further incidents of this
type were reported. IR 82-83, 131-32.

On May 27, 2011, S3 issued Complainant a memorandum informing him that he would be
terminated immediately. The reason stated in the memorandum for his termination was that
his performance on the job during his probationary period was unacceptable, and consequently,
that he failed to qualify. The memorandum noted his ongoing performance deficiencies in the
areas of teamwork and cooperation, and communication. IR 86-87, 136.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an EEOC
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.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on a claim of disparate treatment such as this,
Complainant would have to prove, by a preponderance of the evidence, that S2 or S3 was
motivated by unlawful considerations of his race, gender or age when they made the decision
to terminate his probationary employment. See Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000). Such evidence can take the form of discriminatory statements or
past personal treatment, comparative or statistical data, unequal application of Agency policy,
or deviations from standard procedures without explanation or justification. See Hovey v.
Department of Housing & Urban Development

, EEOC Appeal No. 01973965, (Aug. 31,
2000).
When asked by the EEO investigator why he believed that his race, sex, and age were factors
in the decision to terminate him, Complainant stated that the Agency was under investigation
for its hiring practices and that two other probationary employees had been given enough
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assistance to complete their probationary periods successfully. Complainant admitted,
however, that the hiring investigation to which he referred did not affect him in his situation.
IR 74. S3 averred that the people who Complainant identified as comparatives were GS-7
employees whereas Complainant was a GS-11. S3 emphasized that they were in different
positions and held to different performance standards than Complainant. IR 87. Beyond these
assertions, Complainant has not presented any sworn statements from other witnesses or
documents which contradict the explanations provided by S1, S2, S3, CO1, CO2, or CO3, or
which call their veracity into question. The Commission has long held that unsupported
assertions are not sufficient evidence of illegal motive. Porter v. Department of the Navy

,
EEOC Petition No. 03800087 (January 14, 1981). We therefore agree with the Agency that
Complainant has not proven his claim of discrimination.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.
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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 25, 2015