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

Equal Employment Opportunity Commission

Apr 5, 2021

Appeal No. 2020003148 (E.E.O.C. Apr. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Victor S.1 Complainant, v. Denis R. McDonough Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003148 Hearing No. 570-2016-01016X Agency No. 20DR-01AL-2015104998 DECISION On April 15, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Program Manager/Vice Chancellor at the Agency’s Acquisition Academy, Supply Chain Management School in Frederick, Maryland. On October 4, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black), disability, and reprisal for prior protected EEO activity when: 1. on January 10, 2013, the Deputy Assistant Secretary (RMO1), the Associate Deputy Assistant Secretary (RMO2), the Director (RMO3), and the Chancellor (RMO4) 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. 2020003148 2 cancelled Complainant’s program, which resulted in a loss to the Agency of approximately ten million dollars; 2. from January 10, 2013 to present, RMO2 and RMO3 constantly question and change Complainant’s work that has already been approved by RMO4, and accuse him of not completing program assignments and not providing pertinent program information the policy office; 3. from January 10, 2013 to present, RMO2 and RMO3 failed to provide Complainant ample support to fully implement the Agency Supply Chain workforce training program that they directed him to develop; 4. since January 2013 to present, RMO3 continues to insult and offend Complainant by constantly making derogatory comments about her upbringing in West Virginia and referred to herself as a “redneck”; 5. on or about September 2014, during a staff meeting, RMO1 stated that “the ongoing EEO investigation about intimidation and bullying was bologna”; 6. on or about September 2014, RMO1 instructed Complainant and his staff members not to talk with the Procurement Logistics Office (PLO) and that the individuals in RMO2’s office were the customers they were responsible for satisfying; 7. during March 2015, RMO4 removed all of Complainant’s program management support and did not provide any technical staff to assist in his programs; 8. on or about April 25, 2014, RMO3 told Complainant that RMO2 directed Complainant to extend the “2-learning-contract”; 9. on or about April 2014, after he met with RMO4 concerning complaints his staff made against RMO3, RMO2, and the Portfolio Manager (RMO5), Complainant began to receive unsubstantiated scrutiny from RMO2, RMO3, and RMO5; 10. as of April 2014, RMO2 has stopped coordinating and attending assigned teleconferences with Complainant; 11. on or about April/May 2014, RMO4 told him not to go to the Office of Resolution Management and took no action after he informed her that two of his staff complained that they were being harassed, bullied, and intimidated by RMO2 and RMO3; 12. on or about October 28, 2014, RMO4 issued Complainant a lower than expected performance rating for fiscal year 2014; 2020003148 3 13. on May 6, 2015, during a staff meeting, RMO3 was very confrontational towards him regarding work issues that they both previously supported; 14. on May 29, 2015, Complainant was accused of deliberately misrepresenting information necessary for Fiscal Year training; 15. on June 5, 2015, RMO4 strongly encouraged Complainant to let a contract expire, start a new one, and told him to sign it despite the fact that the document required approval from a Senior Executive Service level official; 16. on or about June 23, 2015, Complainant received less than expected FY 2015 Annual Performance rating, which included unjustified negative comments; 17. as of June 25, 2015, to present, RMO4 continues to transfer funds from his programs to fund other academy programs; 18. on July 8, 2015, the Staff Assistant informed Complainant that she was instructed by management not to communicate with him; 19. in July 2015, RMO2 comments in front of Complainant’s colleagues that he was uncomfortable working with Blacks; 20. on an unspecified date, RMO3 offended Complainant when he made the statement “it must be cultural” when referring to the reason why the test scores for the Principles of Inventory Management courses were lower in Atlanta, GA than in Boston, MA; 21. on an unspecified date, RMO4 threatened to direct Complainant and his staff members to attend Law training; 22. on an unspecified date, RMO4 asked Complainant how much time he needed before he could retire and indicated his programs are in jeopardy of being cancelled; 23. on August 12, 2015, RMO1 denied Complainant’s requires to attend a two-day workshop which had been previously approved by the Agency’s Acquisition Academy Chancellor; 24. on March 29, 2016, RMO1 interrupted Complainant’s preapproved briefing regarding the Learning program and stated, “This briefing doesn’t make sense, this is a program that we paid for and got nothing for it,” and directed Complainant to change the development efforts and cost of the program; and 25. on an unspecified date prior to Complainant’s briefing on the eLearning program contract, RMO2 delayed approving the contract for eight weeks. 2020003148 4 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility, that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2020003148 5 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). 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. 2020003148 6 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 April 5, 2021 Date