[Redacted], Raylene B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJul 14, 2021Appeal No. 2020002463 (E.E.O.C. Jul. 14, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raylene B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002463 Agency No. 200J-0785-2019102117 DECISION On February 10, 2020, 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 January 8, 2020, final decision concerning her 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. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not discriminated against based on national origin and reprisal as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former food-service worker at the Agency’s Veterans Canteen Service (VCS) in St. Louis, Missouri. On April 19, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Spanish/Native American/Italian) 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. 2020002463 2 1. on or around June 2018, to February 13, 2019, Complainant was paid less than Caucasian employees; 2. on February 13, 2019, Complainant was not converted to a full-time position; and 3. on February 13, 2019, Complainant’s contract for employment was terminated. Claim 1 Complainant indicated that she questioned why she, based on her "perceived" national origin, was paid less than other Caucasian employees working in the Canteen Service. Complainant alleged that another minority employee, an African American male retail associate hired at the same time as Complainant, was also paid at the lower salary at which Complainant was paid. Complainant indicated that she had signed a VCS Trainee Contract that she would be paid at the rate of $9.40 per hour. Complainant maintained that Caucasian food service workers were all paid at the rate of $11.45 per hour. Complainant alleged that on several occasions over a four-months period, she raised the pay issue with her immediate supervisor (S1). Complainant indicated that she was later presented with a new trainee contract reflecting her pay at the $11.45 per hour rate. Complainant explained that both contracts provide that the trainee will not have any claim against VCS "for vacation pay, sick leave, or employee benefits of any kind." S1 stated that Complainant did discuss with her the disparity in pay. S1 indicated that Complainant did not advise her that Complainant felt the alleged pay disparity was based on Complainant’s national origin. S1 explained that the previous "acting" supervisor had been the individual who initially entered into the VCS Trainee Contract with Complainant at the lower pay rate. S1 pointed out that she, S1, was the individual who contracted with the food service trainees who earned the higher pay and were identified as comparators by Complainant. S1 stated that the newer trainees entered into contracts at the higher pay rate after Complainant had contracted with the Agency. S1 stated that when Complainant brought to S1’s attention that Complainant and one other employee who had been hired at the same time were paid less than the individuals more recently hired, S1 contacted the Regional Manager (RM) and pointed out the discrepancy in pay. S1 stated that Complainant's pay was subsequently raised to the $11.45 per hour rate. The Labor Relations Manager (LRM) provided supporting statements, adding that at the time Complainant signed her VCS contract, her pay was based on the Non-Appropriated Fund (NAF) wage schedule; and that the schedule changed annually. Included in the record are copies of the NAF Wage Rate Schedules issued March 31, 2017, and April 18, 2018, that support LRM’s statements. 2020002463 3 Claim 2 Complainant alleged that she was promised that she would be converted from a contract employee to a full-time employee (FTE) but that, instead, her contract was terminated. S1 stated that she had advised the RM that she wanted to convert Complainant to an FTE and that she asked for guidance on how to do so. The record included an email dated October 2, 2018, which supports S1's statement. S1 also stated that contract employees could be converted to FTE positions if there was a need in the service. S1 indicated that Complainant was not converted because Complainant had not submitted the required paperwork. S1 explained that the on-boarding process must be completed for contract employees who are eligible for conversion, indicating that Complainant did not complete that process. A Human Resource Specialist (HRS) maintained that contractors of various national origins/races have not been converted to full-time employment for various reasons. HRS specifically recalled an African American male and a Caucasian female who were not converted to full-time. The RM provided supporting statements, explaining that although S1 had advised him that she was considering converting Complainant, Complainant had not completed on- boarding requirements, so she was not converted at the same time three other Caucasian food service workers were converted to full time. Claim 3 Complainant alleged that S1 terminated her contract due to unacceptable attendance. Complainant stated her disagreement with the termination decision. Complainant stated that she was not extended the opportunity to submit a rebuttal to the termination decision as neither S1 nor the notification of termination outlined procedures for submitting one. Complainant also stated that S1 made it clear to Complainant many times that S1 could fire any VCS contract employee at will for no reason, and there was nothing those employees could do, as S1 believed they had no rights. Complainant stated that she was aware a coworker’s contract was also terminated for the same reason as hers. Complainant asserted however that she often witnessed another coworker being absent one or two days per week or leaving early during his employment, indicating that the coworker’s contract was not terminated. S1 explained that, for the period of October 15, 2018, through January 25, 2019, Complainant was scheduled to work a total of 120 hours, but Complainant was absent 90 of the scheduled hours. S1 also pointed out that, as a contract employee, Complainant did not accrue vacation or sick leave. S1 maintained that she had counseled Complainant about her excessive absences and advised Complainant that she needed to watch the amount of time she was off, as absences would affect Complainant’s end of the year evaluation. S1 added that she warned Complainant at the time that excessive absence was a reason for termination. However, Complainant’s absences continued, and so it was decided that Complainant’s contract would be terminated. 2020002463 4 In rebuttal, among other things, Complainant stated that S1 had a "clear disdain" for her because S1 thought Complainant was Mexican, which Complainant was not. Complainant cited incidents when S1 allegedly questioned her about the "day of the dead" (a Mexican celebration); and when S1 allegedly corrected her language on several occasions, indicating her belief that those incidents are evidence of discrimination based on her perceived national origin. Complainant admitted that her pay was raised to the higher level when the pay disparity was brought to S1's attention. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her 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). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not submit a brief in support of her appeal. In its Appeal Statement, the Agency reiterates its reasons for the alleged management actions. The Agency requests that its FAD be affirmed. 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 lawâ€). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. 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). 2020002463 5 To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established prima facie cases of discrimination based on national origin and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. Regarding Claim 1, S1 and LRM explained that the alleged pay disparity was due to the wage schedule in effect at the time Complainant had signed her contract. S1 also stated that Complainant’s pay had been adjusted so that she received the higher pay. Record evidence also reflected that Complainant had been paid retroactively to cover the period of the disparity. Regarding Claim 2, S1 explained, and the RM confirmed, that Complainant was not converted to FTE because she did not complete the onboarding process. HRS also stated, and Complainant did not dispute the statements, that employees from various backgrounds had their contracts converted to FTE. Further, record evidence includes statements by Complainant that she had been notified of E-QIP (Federal Government electronic background/pre-employment check process) errors which Complainant corrected. This indicates that Complainant likely did not timely submit required paperwork for her conversion to occur. Regarding Claim 3, S1 explained that Complainant’s contract was terminated due to Complainant's unaddressed excessive absences. Complainant herself confirmed that at least one other contract employee had been terminated for the same reason as she was. Complainant also failed to demonstrate that the contract employee who allegedly missed work or left early had her same level of absence excesses, yet he was not terminated. In an attempt to show pretext, Complainant disagreed with management’s explanations. However, Complainant presented no evidence to support her assertions that the pay disparity and her non-conversion to FTE were based on protected EEO activity or S1’s disdain for individuals of Mexican descent. Asking questions about the “day of the dead†and correcting Complainant’s language is no such evidence. Moreover, Complainant herself indicated that an African American contract employee had experienced the same pay disparity. Nor does S1’s alleged general statements indicating that contract employees could be terminated at will evidence discrimination based on Complainant’s national origin or reprisal. In January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015), the Commission stated that proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. We find no such evidence in the instant complaint. Therefore, Complainant’s claims fail, and she does not prevail. 2020002463 6 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 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. 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. 2020002463 7 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 July 14, 2021 Date Copy with citationCopy as parenthetical citation