[Redacted], Vasiliki B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 26, 2022

Appeal No. 2022000241 (E.E.O.C. Oct. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vasiliki B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022000241 Agency No. 200I-0544-2021101295 DECISION On October 13, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from a September 15, 2021 final Agency decision (FAD) on 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Social Worker, GS-0185-12, at the Jennings Bryan Dorn Veterans Affairs Medical Center ("Dorn VAMC") in Columbia, South Carolina. On February 11, 2021, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on her race (Black), sex (female), age (54), and reprisal for prior protected EEO activity when, on November 21, 2020, she received an unfavorable performance evaluation. 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. 2022000241 2 The appraisal covered the period of October 1, 2019 to September 30, 2020, and was issued by the Dorn VAMC Assistant Chief of Social Work Service (“Assistant Chief”) (Hispanic/Caucasian, female, age 58), with the unsigned concurrence of the Dorn VAMC Chief of the Social Work Service (“Chief”) (Caucasian, female, age 48), who was Complainant’s second line supervisor. Complainant was rated Fully Successful on four performance elements and Exceptional on one, with an overall rating of Fully Successful. Assistant Chief also conducted Complainant’s two prior annual performance appraisals. In the most recent previous appraisal, Complainant was rated Fully Successful on two performance elements and Exceptional on three, with an overall rating of Exceptional. The preceding appraisal rated Complainant Fully Successful on all five performance elements. Both Assistant Chief and Chief related that Complainant’s fully successful rating accurately reflected her performance and was favorable. Contrary to Complainant’s contention, Assistant Chief stated she considered Complainant’s input, a written self-assessment of her performance. The assessment, with Assistant Chief’s comments, is included in the record. Regarding some of the accomplishments identified by Complainant, Assistant Chief commented they were minimum requirements, like prudent stewardship of resources to assist Veterans and compliance with COVID-19 mandates. On others, she commented they did not pertain to Complainant and/or did not have supportive data, for example, to illustrate decreasing readmissions. Assistant Chief commented that two accomplishments did not occur in fiscal year 2020. She also noted that for a Supervisory Social Worker to earn an exceptional rating, it is expected they participate in activities like Active Committee/Counsel membership. Assistant Chief commented that when she reviewed the appraisal with Complainant, she said she was actively participating in the Social Work Student Counsel. But, when Assistant Chief later followed up, she learned Complainant was inactive, may have participated in only one meeting, and was removed from the counsel due to lack of participation. The Agency investigated Complainant’s EEO complaint and gave her a notice of her right to request a hearing before an EEOC Administrative Judge. Complainant did not respond, so the Agency issued a FAD per 29 C.F.R. § 1614.110(b). The Agency found no discrimination. For purposes of analysis, the Agency assumed Complainant established a prima facie case of discrimination based on her age, sex, and reprisal. It found that management gave legitimate, nondiscriminatory reasons for Complainant’s appraisal rating. Specifically, the decision recounted Assistant Chief’s and Chief’s statements that the rating was based on Complainant’s performance and was a favorable, as well as Assistant Chief’s comments on Complainant’s self-assessment. The Agency found that Complainant did not prove management’s explanations were pretext to mask discrimination. It noted, for example, that Assistant Chief was four years older than Complainant and the same sex. Further, the Agency stated that Complainant did not identify any similarly situated employees who were treated better. The instant appeal followed. 2022000241 3 ANALYSIS AND FINDINGS 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). She must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We find, for the same reasons set forth by the Agency, that Complainant did not prove discrimination. Moreover, while Complainant argued that her annual performance appraisal rating for October 1, 2019 to September 30, 2020, was inconsistent with her prior appraisals, the record reflects that the appraisal was better than the appraisal she received two years earlier. Complainant disagrees with management’s assessment of her performance, but she has not met her burden in showing that it was motivated by unlawful discrimination. CONCLUSION Accordingly, the Agency’s decision 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. 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). 2022000241 4 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. The court has the sole discretion to grant or deny these types of requests. 2022000241 5 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 October 26, 2022 Date