Lemuel M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 14, 20160120143103 (E.E.O.C. Jan. 14, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lemuel M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120143103 Hearing No. 420-2014-00044X Agency No. 200I-0619-2013101566 DECISION On August 14, 2014, Complainant filed an appeal from the Agency’s July 28, 2014 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. 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 order. BACKGROUND Complainant worked as a General Engineer at the Central Alabama Veterans Healthcare complex in Tuskegee, Alabama. On March 1, 2013, Complainant filed an EEO complaint, which he later amended, in which he alleged that the Chief of the Engineering Service, in her capacity as his first-line supervisor (S1), and the Energy Manager retaliated against him for having filed a previous EEO complaint against her by: issuing him a performance rating of “fully successful” for FY 2012 on January 13, 2013; by reorganizing her unit so that he would be reporting directly to the Assistant Chief of Engineering (ACE) rather than to her, effective May 26, 2013; and by denying his training request on July 25, 2013. 1This 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. 0120143103 2 S1 averred that she prepared Complainant’s annual performance appraisals for FY 2011 and FY 2012. For both years, he received overall performance ratings of “fully successful.” The appraisal consisted of seven individual performance elements, four of which were critical. For FY 2011, S1 awarded Complainant ratings of “fully successful” on all seven performance elements. For FY 2012, S1 awarded Complainant ratings of “fully successful” on four elements and “exceptional” on the remaining three elements, one of which was critical. S1 maintained that Complainant had been meeting all of the required competencies of his position for both fiscal years. Investigative Report (IR) 116-21, 153, 155, 159, 161, 303-04, 315-16. On May 26, 2013, S1 sent Complainant a memorandum informing him that he would be reporting directly to the ACE, effective immediately. S1 recommended that her organization be realigned because she was involved in several major projects and needed her subordinate staff to have a direct report while she was unavailable. IR 122-24, 161-67, 190, 315. In June 2013, the Energy Manager put out an email that there would be a few extra dollars in the training budget for FY 2013, and that anyone who was interested in receiving training before the end of the fiscal year should submit a request to him. The Energy Manager averred that there was a major audit of the facility at Tuscaloosa scheduled for the beginning of August, and that when he contacted Complainant on July 22, 2013, to inquire whether he would be available to attend the audit, Complainant replied that he had other priorities. Three days later, Complainant submitted a request for training on measurement and verification that was to take place during September. The Energy Manager averred that he denied that request because he felt that if Complainant could not attend a major activity such as the Tuscaloosa Audit, he would likewise not have time to attend training. Complainant subsequently submitted two training requests for FY 2014, both of which were approved. IR 128-31, 230- 34, 236, 261-73, 347-48, 352-360, 365. At the conclusion of the investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but over his objections, the AJ assigned to the case granted the Agency’s April 28, 2014, motion for summary judgment and issued a decision on June 3, 2014, without holding a hearing. The Agency subsequently issued a final order adopting the AJ’s finding 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 personnel decisions involving performance assessment, organization, or training unless there is evidence of a discriminatory motivation on the part of the officials making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his reprisal claim, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether, S1 or the Energy Manager were motivated by unlawful considerations of his prior EEO activity in connection with the incidents described in his complaint. See 29 0120143103 3 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material fact by submitting sworn statements or documents tending to show that the reasons articulated by S1 and the Energy Manager in support of their actions are not the real reasons for their actions but rather are a pretext for reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can take the form of discriminatory statements or past personal treatment attributable to S1 or the Energy Manager, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). When asked by the investigator why he believed that S1 and the Energy Manager had retaliated against him for prior EEO activity, Complainant responded that it was because he had filed an EEO Complainant against S1 for his FY 2011 performance appraisal. Complainant characterized the FY 2012 performance appraisal, the organizational realignment, and the Energy Manager’s denial of his training request as “attempts to downgrade his performance” and “threats to his employment” made in reprisal for the prior complaint. The statutes the Commission enforces cannot prevent an employer from making decisions with which its employees disagree unless those decisions are rooted in a motivation expressly proscribed by those statutes. And on this crucial issue, other than mere assertions, Complainant did not provide evidence of any of the indicators of pretext described above. He has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by S1 or the Energy Manager, or which call their veracity into question. We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to the motives of S1 or the Energy Manager in connection with any of the incidents described in his complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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: 0120143103 4 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, 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 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 0120143103 5 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 14, 2016 Date Copy with citationCopy as parenthetical citation