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

Equal Employment Opportunity Commission

Dec 14, 2022

Appeal No. 2022003135 (E.E.O.C. Dec. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kennith H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022003135 Hearing No. 550-2022-00088X Agency No. 200P-0010-2021102613 DECISION On May 17, 2022, 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 April 29, 2022, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Contract Officer at the Agency’s VA Regional Procurement Office (West) facility in Vancouver, Washington. On June 4, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (physical), age (YOB: 1964), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 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. 2022003135 2 1. On February 20, 2021, he was given an unrealistic increase in workload; and 2. On March 4, 2021, he was rated as “satisfactory” on his performance appraisal.2 At the conclusion of the 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). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant’s objections, issued a decision without a hearing on April 27, 2022. The AJ noted that there was no evidence of similarly situated employees who were treated more favorably. The AJ further found that even assuming Complainant could establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that the Agency reassigned other work to balance out Complainant’s workload and Complainant himself acknowledged that work was redistributed at his request. The AJ also found that Complainant was rated due to his satisfactory work performance. The AJ concluded that there was no evidence to support Complainant’s assertions of discriminatory animus. 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. Complainant filed the instant appeal, reiterating his arguments that the Agency’s explanations are false. The Agency filed a response, urging affirmance of its final order. ANALYSIS AND FINDINGS 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. (Aug. 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). Upon our review of the record as a whole, we find that the AJ’s Notice of Intent to Issue Summary Judgment (“Notice”) accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. We find that the AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. While Complainant challenges the veracity of the Agency’s explanations, he did not identify any additional evidence which would support his assertions. Moreover, to the extent Complainant challenges the AJ’s findings as to which of his supervisors actually assigned him the increased workload, we note that the actual identity of the responsible management official is not a material fact, especially in light of the lack of evidence in the record indicating that Complainant was, in fact, assigned an unreasonable workload. 2 We note that although Complainant phrased his performance rating as “satisfactory,” the record indicates he received a “Fully Successful” rating. See Report of Investigation (ROI) at 334. 2022003135 3 It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 0120181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). Accordingly, we find that the AJ properly issued a decision without a hearing. We further find that the AJ’s Notice correctly identified the legal standards for Complainant to prove that he was subjected to disparate treatment on the bases of his sex, age, disability, and/or reprisal. We further find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Supervisory Contract Specialist, Complainant’s first-line supervisor (SCS) stated that the workload for contract specialists is assigned according to the workload of each contract specialist. See Report of Investigation (ROI) at 103. The Branch Chief stated that she is not directly responsible for assigning work to the contract specialists, including Complainant, but that in general, there is a main point of contact provided for each station with an alternate and as work projects come, they are assigned to a station. See ROI at 118. She further explained that if a given point of contact is “too full,” then other staff may be given the assignment. See id. The record included an email sent by Complainant in which he stated that he was already “pretty full,” but agreeing to take on additional work because “it has to go somewhere.” See ROI at 130. With respect to claim 2, the SCS explained that she was required to submit a summary rating as part of her transfer to another branch and she gave Complainant the rating because he fully performed the duties of his job. See ROI at 104-105. We agree with the AJ that there is no evidence in the record to support Complainant’s assertions that the Agency’s reasons were either untrue or a pretext for discrimination. We note that Complainant offered no evidence to support his assertions, just repeatedly stated that the Agency “had a history of attacking older disabled vets through reprisal.” See ROI at 82-83. Moreover, to the extent Complainant argues his performance rating was unfair because his performance was outstanding and he has received a higher rating previously, we note that the mere fact that Complainant has previously received a higher rating is not evidence of pretext as an agency is under no obligation to continue giving an employee the same performance rating as before. See Art B. v. Office of Personnel Mgmt., EEOC Appeal No. 0120182172 (Aug. 6, 2020). Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination are insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). 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 finding that Complainant did not establish that he was subjected to discrimination as alleged. 2022003135 4 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. 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. 2022003135 5 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. 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 December 14, 2022 Date