EEOC Appeal 2020000687

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adam F.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(National Cemetery Administration),
Agency.
Appeal No. 2020000687
Hearing No. 520-2019-00046X
Agency No. 200H-0785-2018100123
DECISION
On October 1, 2019, 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
September 6, 2019, final decision (FAD) 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Canteen
Chief, GS-11, Step 8, at the Agency’s Veterans' Canteen Service, Medical Center, facility in
Brooklyn, New York.
On November 7, 	2017, Complainant filed 	an 	EEO 	complaint alleging that the Agency
discriminated against him on the bases of race (Caucasian) and sex (male) when:
1. 	Effective September 29, 2017, Complainant was terminated from his Assistant
Canteen Chief position during his probationary period.
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.

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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). Complainant timely requested a hearing but
subsequently withdrew his request. 	Consequently, the Agency issued a final decision (FAD)
pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that
the Agency subjected him to discrimination as alleged. Specifically, the FAD found that
Complainant’s Supervisor (S: Asian, male) articulated a legitimate, nondiscriminatory reason for
his action, namely that Complainant was terminated for performance and attendance issues. The
FAD further found that Complainant failed to establish that the Agency’s articulated reason was a
pretext.
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”).
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant
established his prima facie case of discrimination.

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We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action.
Complainant’s September 18, 2017 removal notice stated that Complainant was being removed
for “failure to qualify during your probationary/trial period. Your termination is due to failure to
fulfil the requirements, duties and responsibilities of your position.” During the investigation, S
averred that Complainant was removed because he:
Failed to comply with the food safety and sanitation focus, it was noted on the
regional manager visit reports, and along with the pictures showing areas of failing.
His lack of leadership to the direct staff when complying with food safety and
sanitation is also concerning, as well. We also have concern of his repeated
attendance and tardiness matters, and he was previously AWOL, due to this matter.
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine;
McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet
this burden. Complainant averred that he was shocked to receive the removal notice and that:
I did absolutely zero percent wrong. I was not in fault of the reasoning for him to
get on me. My numbers were increasing and getting better with every month that I
worked. My food cost was getting lower with every month that I worked. Brooklyn
was a very difficult canteen as the food end of it, it was kind of bringing it back up
from near closing. So when I got there, I was kind of just digging everybody out,
and little by little we were improving and getting back to the standards. . . . [M]y
performance 	exceeded 	expectations. 	And 	my attendance 	was 	never 	out 	of
compliance. To elaborate a little bit on that; my performance, again, I would come
in and -- from what I did in that canteen, I mean, I changed the culture of the
kitchen, I changed their food cost numbers, their profit, their health codes, as far as
making things very clean, getting things up to code, up to standards of where the -
- not only New York, but the VCS, and the VA standards are. And again, just went
above and beyond on all of those matters. As far as my attendance, I -- out of seven
months that -- the first -- out of the first seven months that I worked, I was out for
three days with the flu. And I had gone to the VCS University in March; March
26th of 2017, I had started, and that's a month's training. When I returned home on
April 25th, it was maybe three days into it, and I needed emergency eye surgery, so
I was out for five days on that, and had a note, and used my vacation time up for or
sick time up for that. And then approximately two to three weeks after that, I was
hospitalized for ulcerative colitis. But besides those facts, I was at work every day,
I was on time as far as my tour, I was normally there before my tour started and
after my tour ended. And so, yeah, I mean, they don't have -- I was never written
up, they have absolutely, you know, nothing on me, to tell me that it was attendance
and performance.

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In addition, a Medical Support Assistant (MSA: white, female) who worked under Complainant
averred that she believed Complainant’s removal was discriminatory because after his removal she
observed Complainant’s position being given to an Asian female. MSA averred that “I was also
terminated because of my race and I was refused a position that I was qualified for and the person
who received the position was an Asian female.”
The record includes a report written by the Area Manager (AM) concerning an undated visit he
took to the kitchen area. AM listed numerous problems including uncovered leftover food, mold,
insufficient labeling of food, an incorrectly set up bay sink, no PH testing log, and employees who
were not fully cognizant of certain aspect of the kitchen even though AM said that “I am pretty
sure I have gone through this with both employees in the past.” AM wrote “This was one of the
worst kitchens I have seen in a long time. Very disappointing and will not be allowed.” The report
is accompanied by a number of photographs of the conditions that are, unfortunately, blurry and
impossible to make out.
After a subsequent visit on August 21-22, 2017, AM wrote in his report to S:
My concern was the items I had noted as well as Ecosure had not been addressed.
Lack of leadership is the problem and I do not believe [Complainant] can do the
job expected. My greatest concern is the lack of documented temperature logs and
production/waste 	logs. 	Although 	these 	items 	have 	been 	addressed 	with
[Complainant] by both you and I on multiple times and [sic] they were not
implemented. Food handling and food storage continues to also be an issue as
indicated by the pictures I have taken. Many of the products in the refrigerators are
undated or not properly covered. Several left-over items were a week old when I
did my inspection. The slicer in the deli had food build up that was a risk to the
public safety. The rolling storage rack used to store items in the walk-in refrigerator
had a food build up on the rails which was noted on July 21st visit and still remained
uncleaned on my August 21 st visit. The Broaster Chicken is not being cooked per
standards and the product on the line during my visit was so over cooked it was not
edible. The deli employee was observed "pencil whipping" her temperature
recordings and documenting the AM and PM temps at the end of her shift. I asked
her the next day why she had done this and she stated she did not have enough time
during the day. I believe this was a routine practice. I do not think [Complainant]
sees any of the issues and that is a major problem. His awareness and urgency are
not 	there. 	[Complainant’s] 	attendance 	is 	also 	a 	concern. 	[Complainant’s]
attendance has been an issue, he seems to have a habitual problem with either being
late or missing work. As you noted [Complainant] was marked AWOL a couple of
weeks ago as he called out sick on a Monday. What message does this send to our
associates??? During my visit we spoke with [Complainant] about all of these
concerns 	and 	his 	needing 	to 	Improve. 	Per 	our 	conversations 	since 	then
[Complainant] has made little progress. It is time to assess [Complainant’s]
potential to be a productive VCS Manager. I want to make a decision in the next
week on [Complainant’s] future employment.

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The record further contains progress reports for 30 and 60 days following Complainant’s
graduation from the Agency’s Canteen Service University. The ratings cover 13 areas including
“Technical Knowledge,” “Personal Motivation” “Management and Competence” among others.
The 14th entry lists “Continue with Employment.” The ratings are on a scale of one to five, with
five being “proficient,” three being “knowledgeable” and one being “unacceptable.” After 30 days
Complainant did not score a five in any of the 13 categories, scoring three in ten categories and
one in three categories. After 60 days Complainant still did not score a five in any category and
scored a three in just six categories and was now scoring a one in seven categories. After 30 days
S wrote “yes” under “Continue with Employment” but after 60 days S had changed his answer to
“no.” The reports further contain a written narrative after 30 and 60 days but unfortunately these
are largely illegible. The written narrative does show, however, that with regard to the 30-day
rating, Complainant disagreed with the three “ones” he received. The record does not show
Complainant signed or provided a written response to the 60-day rating. However, given that he
provided a written response to the 30-day rating, we find that Complainant’s claim that his removal
came as a “shock” and that management “have nothing on me” to be disingenuous. We note in this
regard that Complainant has not denied the findings of AM regarding the sanit. Finally, we note
that the record also contains a log created by S showing numerous instances of tardiness by
Complainant as well as absences due to sick leave, and one instance of Absence Without Leave
(AWOL).
Complainant argues on appeal that “the canteen has a clear desire to favor female Asians.
Complainant, the record reveals, was replaced by an Asian female who had little experience. [S]
hired another Asian female to replace the Starbucks Coffee Manager over a much more
experienced Caucasian.” We note, however, that the record indicates that at least some of the
pressure to terminate Complainant’s employment came not from S but from AM, who wrote to S
“It is time to assess [Complainant’s] potential to be a productive VCS Manager. I want to make a
decision in the next week on [Complainant’s] future employment.” Complainant contends that,
with regard to AM’s negative comments after his first site visit, Complainant had been out on
medical leave and so “any perceived substandard conditions were not Complainant’s fault.
Complainant was wrongfully accused. If anyone was to blame, it was [S]. Complainant was then
given an unfair deadline to cure the alleged deficiencies, which were not of his doing in the first
place.” Such an argument, however, does not address AM’s negative comments after his
subsequent August visit.
Following a review of the record we find that Complainant has not established, by a preponderance
of the evidence, that the Agency harbored any animus towards his protected bases, or that the
articulated reason for its action is a pretext to mask discrimination.

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not established that discrimination
occurred, and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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.

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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 9, 2020
Date