[Redacted], Emerson P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 30, 2021

Appeal No. 2020001244 (E.E.O.C. Mar. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerson P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020001244 Hearing No. 410201900272X Agency No. 200I05082018105290 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 31, 2019 Final Order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Biomedical Equipment Support Specialist ("BESS"), GS-11, for the Agency’s Atlanta Healthcare System Engineering Service in Decatur, Georgia. On September 11, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Black) when, on or about June 15, 2018, after learning two of his colleagues (both White) and his supervisor (White) received promotions 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. 2020001244 2 under Biomedical Engineering’s New Hybrid Title 38 Conversion (“Conversion”),2 Complainant was informed that he would not receive such a promotion, and would have to compete for a higher graded position, but only if the Biomedical Engineering Supervisor decided to advertise Complainant’s position at a higher grade. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. After the parties engaged in discovery, the Agency submitted a motion for a decision without a hearing to the AJ. Over Complainant’s objection, she (the AJ) issued a decision by summary judgment in favor of the Agency on October 28, 2019. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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). 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 Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 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). 2 The Conversion resulted in converting all BESS and Medical Equipment Repairer Leader positions at the VA Atlanta Healthcare System Engineering Service from a competitive service positions to excepted service positions. Complainant’s supervisor (“S1”), who was promoted from GS-12 to GS-13, was responsible for assessing the positions of Complainant and his three white coworkers (“C1,” “C2”, and “C3”) all GS-11s, to determine how to convert their positions. The options for converted BESS positions included: BESS (Imaging), GS-12, BESS (Biomedical Information Systems (“BIS”)) GS-12, Lead BESS, GS-12, and BESS, GS-11. S1 instructed C1 and C2 to submit their resumes to HR and recommended C1, who was already the Lead Tech, for Lead BESS, GS-12 and C2 for BESS (BIS), GS-12. S1 placed Complainant and C3 on a lateral conversion list to BESS, GS-11. HR accepted S1’s recommendations. Complainant, who worked primarily on imaging, argues that he should have been converted to BESS (Imaging), GS-12, as the stated reason for promoting C2 to BESS (BIS), GS-12 was that C2 worked primarily on BIS. S1 stated that nearly all of the GS-12 level imaging work was outsourced to contractors, so no BESS (Imaging) GS-12 position existed at the facility. 2020001244 3 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. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. On appeal, Complainant contends that questions of fact and credibility exist regarding the Agency’s legitimate nondiscriminatory reasons for his non-promotion, namely, that Complainant was working at a GS-11 level at the time of the Conversion, and regardless, there was no BESS (Imaging), GS-12, position available at the facility, as, according to S1, the GS-12 level Imaging duties were “overwhelmingly outsourced to private sector contractors.” Complainant, despite having had opportunity to engage in discovery, has not offered evidence to support his argument on appeal. For instance, he references witnesses that can speak on his behalf, but offers no witness statements, nor has he provided documentation that the repairs and training he states that he completed were at the GS-12 level. (Complainant does not address the similarities between the duties listed in his last two Performance Appraisals before the Conversion, and those listed on the BESS, GS-11, function sheet). To the extent Complainant argues that the AJ erred by disregarding C2 as a similarly situated comparator, we have considered the parallels Complainant draws between his alleged treatment by S1 and C2’s treatment at the time of the Conversion, and determined that the record still supports her (the AJ’s) finding. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that she correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s Final Order adopting 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. 2020001244 4 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. 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. 2020001244 5 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 March 30, 2021 Date