Demarcus I.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 16, 2018

0120162610 (E.E.O.C. May. 16, 2018)

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

Demarcus I.,1
Complainant,

v.

Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162610

Hearing No. 570-2012-000856X

Agency No. 2004-01AL-2012100410

DECISION

On August 12, 2016, 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
July 15, 2016, 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

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Contracting Specialist (GS-1102-15) at the Agency’s Office of Acquisition and Logistics in
Washington, D.C. On December 12, 2011, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of sex (male) when:

1. on September 21, 2011, he was issued a Letter of Reprimand; and

2. on October 27, 2011, he was informed that the issuance of his yearly performance
appraisal was being postponed.

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.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ
assigned to the case granted the Agency’s motion for a decision without a hearing on July 13,
2016. The AJ found that Complainant adduced insufficient evidence to prove that he was subjected
to disparate treatment discrimination or hostile workplace harassment. The Agency subsequently
issued a final order adopting the AJ’s finding.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 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. For the reasons set forth below, we find that this case presents no genuine issue of
material fact requiring a hearing to be resolved.

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons
for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).

It is well-settled that harassment based on an individual’s statutorily protected bases is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or
engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his
membership in those classes or his prior EEO activity; (3) the harassment complained of was based
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on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982).

Claim #1 (Letter of Reprimand)

The Agency explains that Complainant was issued a letter of reprimand because he failed to
comply with the requirement that he undergo 80 hours of training during a two-year period in order
to maintain his Federal Acquisition Certification, Level III contracting and warrant privileges.
Without warrant privileges Complainant was unable to execute contractual documents. ROI at
174. This is a legitimate, nondiscriminatory reason for the Agency’s actions. Complainant has
failed to show that it is a pretext designed to conceal discriminatory animus. Complainant does not
dispute that his supervisor directed him to complete the necessary training or that he failed to
comply with those directions.

Claim #2 (Performance Appraisal Postponed)

According to the Agency, the issuance of Complainant’s performance appraisal was postponed
because the Agency became aware of “significant contracting discrepancies” in an acquisition
office for which Complainant had responsibility. An investigation of Complainant’s involvement
was initiated. The issuance of Complainant’s performance appraisal was postponed pending
resolution of the investigation. ROI at 175. This is a legitimate, nondiscriminatory reason for the
Agency’s actions. Complainant has failed to show that it is a pretext designed to conceal
discriminatory animus. He characterizes the contract discrepancies as “bogus” but does not
dispute that an investigation was initiated.

Harassment

Finally, insofar as Complainant contends that the incidents alleged constitute harassment based
upon his sex, the Commission finds that since he failed to refute the legitimate, nondiscriminatory
reasons proffered by the Agency for its actions, he also failed to establish that such actions were
taken on the basis of his membership in the protected classes. Accordingly, Complainant failed to
establish that he was subjected to a discriminatory hostile work environment. See Bennett v.
Department of the Navy, EEOC Request No. 05980746 (September 19, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order implementing the AJ’s
decision without a hearing finding that he was not discriminated against as alleged.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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
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.
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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

May 16, 2018
Date