[Redacted], Nelson R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 2, 2021Appeal No. 2020002594 (E.E.O.C. Sep. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nelson R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002594 Agency Nos. 20DR-0001-2018101781 and 20DR-0001-2019100298 DECISION On February 24, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 30, 2020, final decision concerning his equal employment opportunity (EEO) complaints 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 the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency discriminated against him based on his race, sex, and in reprisal for his protected EEO activity, and association with his mother’s2 EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Dispatcher, GS-5, at the Agency’s facility in Washington, District of Columbia. 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. 2 Complainant’s mother is also an employee of the Agency. 2020002594 2 Complaint 1 - Agency No. 20DR-0001-2018101781 On March 31, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when: 1. on November 30, 2017, the Management Analyst (Caucasian, female, no prior EEO activity) sent an email to Human Resources to have Complainant’s career ladder appointment to a GS-8 removed from his GS-5 position. Complainant received an official notice of the personal action on March 4, 2018, which was back dated as approved on December 7, 2017; and 2. on or about December 12, 2017, Complainant’s request for non-competitive promotion from a GS-5 to the GS-8, which he should have received six months prior, was denied. Complaint 2 - Agency No. 20DR-0001-2019100298 On December 13, 2018, Complainant filed a second formal complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: 3. on October 1, 2018, Complainant discovered during a townhall meeting that all the positions within his unit, except his position, had been upgraded to a GS-9; 4. on or about October 3, 2018, Complainant’s first line supervisor, the Dispatch Service Chief (S1) (African-American, male, no prior EEO activity) discussed decreasing Complainant’s assignment of duties, but did not;3 5. on October 4, 2018, S1 informed Complainant that his June 25, 2018, request for a desk audit was denied; 6. on October 3, 2018, S1 informed Complainant that his position description would be reclassified, to a GS-7/9, which might require him to compete for the position; 7. on October 4, 2018, S1 informed Complainant that management wanted to move him to a unit with other GS-5 employees; and 8. on an unspecific date to present, Complainant continues to remain a GS-5 while performing the duties of a GS-9. 3 This claim was corrected in the EEO Investigator’s Investigative Summary. We changed it here to reflect the correct claim. 2020002594 3 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). At the time of Complaint 1, Complainant was represented by counsel who requested a hearing. By the time Complainant filed Complaint 2, he was pro se and elected a final Agency decision. On August 30, 2019, at Complainant’s request, the AJ consolidated the two complaints for processing and dismissed the respective hearing request. The AJ then remanded the matter to the Agency for a final Agency decision on the consolidated complaints. On January 30, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant was hired under the Agency’s Pathways Program as a GS-5 employee with no promotional potential. Complainant was therefore ineligible for any non- competitive promotion. However, Complainant’s SF-Form 50 mistakenly listed his position as a career ladder position eligible to GS-8, leading him to believe otherwise. The mistake was later corrected. The Agency further determined that while Complainant was a highly praised employee who frequently completed work beyond his requirements, he was never asked or required to do so. Ultimately, the Agency found that there were no merits to the allegations and that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant provides several hundred pages supporting his allegations. Complainant generally reiterates prior statements and arguments provided in both investigations. For example, Complainant disagrees with the Agency’s conclusion that he was never asked to perform GS-9 work, and that any GS-9 work was entirely voluntarily. Complainant disputes the Agency’s argument that he dispatched less cases and/or less complex cases than his GS-9 counterparts. Complainant argues that the Agency failed to provide any policy on how a case’s complexity could be determined prior to assignment and therefore could not possibly demonstrate that he was assigned fewer complex cases than his GS-9 coworkers. Further, he notes that while he generally had a positive relationship with S1, he felt that he had to work harder and performed GS-9 work in order to maintain S1’s support of his promotion requests. The Agency did not provide a response brief. 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 2020002594 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Upon our review of the voluminous evidentiary record which consists of numerous affidavits and exhibits, and having fully considered and analyzed the Agency’s decision which recites and addresses each claim and identifies the evidentiary support on which it relied for its alleged actions, we conclude that the preponderant evidence does not establish discriminatory or retaliatory animus.4 Complainant’s allegations concerned his status as a GS-5 employee. Complainant claimed that any attempts at obtaining a promotion were sabotaged by Agency officials, and that he was forced to perform GS-9 work at a GS-5 pay rate. Complainant repeatedly argued that even if management never explicitly directed him to perform GS-9 work, which he claims they did, he was routinely pressured to perform such work anyway. 4 The record in this case is exhaustive and details numerous incidents in support of the claim. We will not individually address each incident of alleged discrimination. Although the claims will not be individually addressed, all matters which Complainant raised have been considered and viewed in the context of all bases and in the context of disparate treatment and a hostile work environment. 2020002594 5 The record contains detailed and numerous documents concerning Complainant’s claims. However, despite the documentation, we find that Complainant has failed to show that the claims raised were causally connected to unlawful discrimination on any basis or motivated by discriminatory or retaliatory animus. Even if the claims occurred as alleged, Complainant failed to show that the Agency officials were in any way motivated by discriminatory or retaliatory animus. The actions taken by the alleged discriminating officials were routine managerial actions, and absent discriminatory animus, will not be second-guessed by the Commission. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant established a prima facie case of discrimination based on his protected class of sex, race, and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complaint 1, claims 1 and 2, Complainant alleged that his ability to obtain a promotion to GS-8 was discriminatorily removed, which resulted in a promotional denial. The record demonstrated that Complainant was hired under the Agency’s Pathways Program, in a position with no promotional opportunities. Despite the position having no promotional ability, Complainant’s SF-50 mistakenly listed his eligibility with a promotional career ladder to the GS- 8 level. On April 8, 2016, Complainant brought forth an inquiry about Pathways conversion to permanent employee status. Complainant asserted that his colleagues were all GS-9 employees and that he was the only GS-5 employee. He requested conversion to the GS-9 status. That same day, the Management Analyst responded, and explained the process for Pathway employees. Specifically, that a Pathway employee would need to complete his/her degree requirements, provide documents for conversion as a regular non-Pathways employee, and then apply for an open vacancy that would provide the accurate promotional ladder. Here, Complainant acknowledged that the original Pathways Program posting made no mention of promotional opportunities but argued that since the SF-50 mentioned conversion eligibility, he should be granted the ability to do so. Complainant cited to an internal Agency Memorandum to support his arguments. The HR Department researched the matter and found that the mistake had to be corrected. When the mistake was later corrected, and backdated on the SF-50, Complainant’s ability to obtain non-competitive promotion to a GS-8 position was also removed. Complainant was repeatedly informed that it was ultimately a mistake, that he could convert into a regular non-Pathways employee, and then apply for open vacancies, which he later did (claim 8). While the circumstances surrounding claim 1 and 2 clearly impacted Complainant, there’s no evidence that management acted with discriminatory or retaliatory animus in the incidents in claims 1 and 2. Regarding Complaint 2, the allegations related to Complainant’s concerns regarding his GS-5 dispatcher position and work levels associated with it. 2020002594 6 Complainant asserted that he was subjected to a variety of discriminatory incidents based on his EEO activity and association with his mother’s EEO activity. Assuming that Complainant established a prima facie case of discrimination-based reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Here, Complainant argued that his coworkers were upgraded to a GS-9 position (claim 3), while he remained a GS-5. The event referenced was a townhall event in which an HR employee discussed details of a recent realignment where GS-11/12 employees were to be moved out of the branch and more GS-9 employees would be transitioned in instead. There was no discussion of employees being “upgraded” to GS-9 status, nor is there evidence that employees were spontaneously upgraded to GS-9 status. In claims 4 and 8, Complainant asserted that he was continually assigned and/or forced to perform GS-9 duties while at the GS-5 payrate. For example, Complainant asserted that S1 discussed changing his duties so that they would not be the same as his GS-9 coworkers. However, Complainant alleged that S1 never did, and he continued to perform GS-9 level work at the GS-5 pay. S1 testified that there was never a discussion regarding changing Complainant’s duties. S1 noted that the unit only dispatched cases, so a GS-5 and a GS-9 employee would both be responsible for dispatching. S1 testified that the difference was the number and complexity of cases assigned. Complainant repeatedly argued that there was no way for the complexity of a case to be gauged prior to assignment to a dispatcher. As noted prior, a managerial action, such as assignment of cases based on complexity will not be second-guessed by the Commission absent evidence of discriminatory animus. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Based on the record, there is no evidence to suggest that the cases were not assigned based on the dispatcher’s GS level. Additionally, while the record indicates that Complainant’s work was highly praised and that he routinely dispatched large numbers of cases, there is no indication that Complainant was provided GS-9 duties, or in anyway forced to do GS-9 level work as he alleged. Still, Complainant repeatedly refuted the Agency’s framework that he routinely volunteered to perform GS-9 tasks and workload. Instead, Complainant asserted that it was clear S1 was only on his side because of his work ethic and his ability to produce at the higher GS level. Complainant cited to a December 1, 2017, email in which S1 instructed him to follow the same instructions as provided to GS-9 employees. When reviewing this document, we note that S1 provided the staff, specifically the GS-9 employees, to “charge their problem cases” to a certain employee for further action. This instruction is general and does not indicate that Complainant was being directed to perform specific work beyond his GS-5 status. However, since Complainant believed his position was not appropriately graded, he requested a desk audit. Complainant asserted that in an essence a cover-up occurred when S1 informed Complainant that his request was denied (claim 5). During the investigation, the HR Specialist and S1 denied informing Complainant that the desk audit was denied. Instead, it appeared that the desk audit was delayed because the HR Specialist required an account of Complainant’s position description. 2020002594 7 S1 testified that when he was requested to provide a position description, he specifically created one that was in the GS-7/9 range because he wanted to ensure Complainant had the ability to obtain the next grade service (claim 6). However, S1 reiterated again that Complainant was not required to perform GS-9 level work. Despite having written the position description, the record indicates that the departments were uncoordinated as the HR Specialist testified that she never proceeded with a desk audit because she never received the position description. Meanwhile, it appeared that S1 believed he had completed his portion of the desk audit process and did not pursue the matter further. The HR Specialist noted that she did not hear back prior to the investigation and did not proceed further. While uncoordinated, it did not appear that there was any intentional and discriminatory denial of Complainant’s desk audit request. Regarding claim 7, S1 acknowledged that management considered moving Complainant to another unit that also had other GS-5 employees. However, since S1 knew that Complainant wanted to be in a GS-9 position, he fought to keep him in the dispatch unit as he felt it would improve his chances. He noted that the discussion was part of the Agency’s overall realignment phase and that Complainant was never moved. Lastly, regarding claim 8, by the time of the investigation, Complainant was converted into a non-Pathways employee, and later accepted into a GS-7/9 position. Complainant noted that even though he had been promoted, he wanted compensation for the duration where he was forced to perform GS-9 work at GS-5 pay. S1 acknowledged that Complainant was an outstanding employee, and he routinely noted his work ethic and production in his evaluation. However, as demonstrated in the record, there is no evidence that Complainant was asked and required to complete GS-9 level work for less pay. Lastly, in this matter, we note the various conflicting statements, such as whether Complainant’s work was less complex than his GS-9 peers. However, as a hearing before an EEOC AJ was not pursued, we do not have the benefit of an AJ's credibility determinations of these conflicting statements. Complainant had to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Here, the evidence is, at best, in equipoise. Accordingly, Complainant has failed to meet her burden of persuasion. Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). Based on the record, we find insufficient evidence to support a finding of discrimination on any basis, or the presence of retaliatory animus. Equal Pay We note that Complainant repeatedly asserted that he was not paid for equal work as compared to his GS-9 colleagues. In reviewing the matter, the Agency found it more appropriate to review the matter as a disparate treatment issue. However, since Complainant argued that at least one female coworker (CW1) was allegedly converted into a higher career position when he was not and was then paid a higher rate for the same work, we will also review the matter under the Equal Pay Act (EPA) framework. 2020002594 8 The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. Equal Employ’t. Opportunity Comm’n., EEOC Appeal No. 01A02919 (Sept. 12, 2000), req. for recon. denied, EEOC Request No. 05A10076 (Aug. 12, 2003). Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production of work (also referred to as an incentive or piecework system); or, (4) a differential based on any factor other than sex. Id. Assuming that Complainant established a prima facie violation under the EPA, to prevail Complainant had to establish that he received less pay than his female coworkers, such as CW1, for equal work, requiring equal skill, effort, and responsibility, under similar working conditions. Clement M., v. Dep’t. of the Navy, EEOC Appeal No. 0120140861 (Oct. 19, 2016). Complainant failed to do so. Here, Complainant asserted that CW1, who was also initially hired through the Pathways Program, was able to convert and climb the promotional career ladder, when he was not. Complainant argues that while he and CW1 entered the same program, only CW1 was able to obtain a GS-7/9 promotion. Complainant asserted that he was forced to perform GS-9 work at the GS-5 rate when his promotion request was denied. Despite his contentions, the record does not support Complainant’s assertions. The record demonstrated that CW1 was hired through the Pathways Program, and in a position with no promotional career ladder. Upon completion of the program, CW1 was converted into a regular GS-5 position. A vacancy was later announced for a GS-7/9 position. At that point, CW1 applied for the open vacancy and was selected. CW1 clearly met the requirements of the program, and was converted to a regular GS-5 position. When C1 later applied for the GS-7/9 position, she was selected for the promotion. While the Agency here did not provide an EPA analysis, we find that based on the record, there was no violation of the EPA. Any differences in pay between Complainant and his coworker was purely the result of his status as a GS-5 employee; which was unfortunately complicated by a mistake in his SF-50 paperwork. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not discriminate or retaliate against Complainant as alleged. 2020002594 9 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. 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). 2020002594 10 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, Director Office of Federal Operations September 2, 2021 Date Copy with citationCopy as parenthetical citation