[Redacted], Heath P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 5, 2021

Appeal No. 2021002073 (E.E.O.C. Apr. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Heath P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002073 Agency No. 200J-0589-2019104383 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency final decision, dated January 13, 2021, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Program Support Specialist, GS-6, in the Office of Community Care (OCC) at the VAMC in Kansas City, Missouri. Complainant’s primary job duty was as a timekeeper for approximately thirty-five employees. Complainant, however, also entered EPAS requests, took meeting minutes, and resolved basic computer program issues. In anticipation of a new position, for a Customer Services Representative (CSR) in OCC, Complainant requested a detail or training with patient advocates in another department. Management officials denied Complainant’s request. Specifically, the officials determined that Complainant’s detail/training proposal would not benefit his current position. 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. 2021002073 2 Months later, Complainant learned that a new position was filled internally without any formal announcement. Believing that he was subjected to discrimination based on his disability (PTSD) and religion (Muslim), Complainant filed a formal EEO complaint on October 2, 2019. The Agency framed the claims as follows: Whether Complainant was subjected to a hostile work environment when: (a) March 25, 2019 through April 22, 2019, Human Resources did not respond to his requests for a transfer; (b) On July 1, 2019, he did not receive a response from an HR Officer regarding the selection process for Customer Services Representative; (c) On July 2, 2019, he was told that the OCC CSR position was already filled internally; and, (d) On July 3, 2019, he was told he would be issued written expectations. and Whether Complainant was, on March 1, 2019, denied training. On October 16, 2019, the Agency issued a Notice of Partial Dismissal. The Agency dismissed the hostile work environment matter for failure to state a claim, the Agency reasoning that the alleged incidents were not sufficiently severe or pervasive to state a cognizable claim. The denial of training claim, however, was accepted for investigation.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission 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), finding no discrimination. Complainant filed the instant appeal. He did not submit any statement or brief in support of his appeal. 2 Although the Agency believed that the claim was untimely raised with the EEO Counselor, it waived the forty-five day time limit. 2021002073 3 ANALYSIS AND FINDINGS Standard of Review 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”). Disparate Treatment3 To prevail in a disparate treatment claim such as this, 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 in this case, however, since 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). Complainant did not request, nor was he denied, attendance at a particular training. Instead, Complainant sought to work with patient advocates in an effort to gain customer service skills. Complainant’s first-line supervisor attested that Complainant’s request was denied because it was unclear how such experience would benefit Complainant’s current position or the CSR position. 3 As Complainant did not expressly appeal the Agency’s earlier procedural dismissal, we will not consider that matter herein. Rather, the Commission exercises its discretion to review only the issues specifically raised in Complainant’s appeal. See EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, at § IV.A (Aug. 5, 2015) (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal.”). 2021002073 4 Further, the first-line supervisor noted that this type of cross-training was not available in OCC. The first-line supervisor indicated that she did raise Complainant’s desire with the Executive Leadership Team, but that no relevant training was identified. Additionally, the first-line supervisor added Complainant to an email group that received customer complaints, so that he could discuss the complaints, and her responses to them, to expand his understanding. In an effort to show pretext, Complainant argued that his own first-line supervisor was detailed into a position which she later would interview for and obtain months later, while he was denied a similar opportunity to cross-train through a detail. The record, however, indicates that the placement of Employee-R into the later CSR position was not preceded by a detail. These efforts, however, fail to meet Complainant’s burden in proving that the Agency’s reasons are not credible and instead a mask for discriminatory animus. In fact, Complainant has failed to establish a nexus between his protected bases and the Agency’s actions. When asked why he believed his religion or disability were factors, Complainant simply attested that similarly situated individuals who were not Muslim or disabled were provided the opportunities he sought. Yet, Complainant did not identify any comparators or other evidence to support this contention. Even in challenging the Agency’s decision not to post the new OCC CSR position, Complainant remarked that management failed to consider all employees. By so doing, the Agency was not discriminating against any one protected class. CONCLUSION Based on a thorough review of the record, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2021002073 5 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. 2021002073 6 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 April 5, 2021 Date