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

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020003486 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Porter H.,1 Complainant, v. Dennis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003486 Agency No. 200H-0646-2019100673 DECISION 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 27, 2020 final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supply Technician, GS-2005-06, at the Agency’s Pittsburgh Healthcare System (H.J. Heinz Campus), in Pittsburgh, Pennsylvania. On December 10, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to reprisal for his prior protected EEO activity when, on November 7, 2018, Complainant received an evaluation that was lower than what he felt he deserved. 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. 2020003486 2 Complainant was responsible for stocking multiple buildings with medical supplies on the Heinz Campus. Element 5 (Job Performance) of his Performance Agreement required the Supply Technician, among other things, to maintain the necessary control of the assigned stockroom, inventories, logging receipts and storing and recording shipment data. Complainant’s immediate supervisor for the relevant rating period at issue was the Supervisory Inventory Management Specialist (S1). S1 supervised Complainant from February 18, 2018 to February 11, 2019 and was the rater of record for the Fiscal Year 2018 performance appraisal. This was S1’s first time rating Complainant. S1 averred that he was unaware of Complainant’s prior EEO activity. Report of Investigation (ROI), p. 84. On November 7, 2018, S1 issued Complainant a “Fully Successful” rating for the rating period October 1, 2017 to September 30, 2018. S1 rated Complainant as “Exceptional” in two of the three critical elements, but, for the third element, Element 5, he rated Complainant as Fully Successful. In the appraisal, S1 explained that “[Complainant] should process material issues from the PCC sign-out sheet regularly to avoid inventory record discrepancies.” ROI, p. 90. He further stated Complainant should also “process auto-generation to support efficient inventory management.” He added that Complainant required “regular guidance in performing routine processes, despite his lengthy tenure.” The appraisal noted that “no self-assessment was submitted.” Complainant claimed that S1 never notified him of any deficiencies. S1 responded that Complainant did not provide any accomplishments or information that warranted a higher rating. ROI, p.85. The record shows that in order to be eligible for an Excellent rating, all critical elements must be rated as Exceptional. For an Outstanding rating, all critical and non-critical elements must be rated as Exceptional. Consequently, Complainant was not eligible to receive an overall rating of Excellent or Outstanding. S1 acknowledged he discussed all of the proposed ratings with the Chief Supply Chain Officer (S2) prior to issuing the appraisal, because this was his first time issuing ratings for the unit. The appraisal rating did not include the name or signature of any reviewing (concurring) official. The record shows that Complainant subsequently transferred to a different supervisor. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that Complainant was not subjected to reprisal as alleged. The instant appeal followed. 2020003486 3 ANALYSIS AND FINDINGS 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 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 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Even assuming that Complainant established a prima facie case of reprisal, we find that S1 articulated legitimate, non-retaliatory reasons for his actions, as discussed above, and the record does not otherwise substantiate Complainant’s claims. Specifically, S1 stated he issued Complainant a Fully Successful rating because Complainant failed to meet his legitimate expectations regarding Element 5, that pertained to inventory records management. S1 noted that Complainant failed to submit any accomplishments or other information that would support a higher rating. S1 stated that he initially rated the three other Supply Technicians as Fully Successful; however, one co-worker’s rating was raised following that employee’s grievance and submission of additional documentation. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant does not carry his burden here. Accordingly, the Commission finds that Complainant was not subjected to reprisal as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 2020003486 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. 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). 2020003486 5 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 September 21, 2021 Date