Enola L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 5, 2019

0120182554 (E.E.O.C. Mar. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Enola L.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120182554

Agency No. 200P-0662-2017104425

DECISION

On July 20, 2018, 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
July 9, 2018, 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., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Security Assistant
at the Agency’s Police Department in San Francisco, California.

On August 31, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of national origin (Chinese) and disability when:

1. Complainant received conflicting information regarding the contract award
ratification process;

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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2. Complainant was required to complete contract ratification training;

3. Complainant was confronted about previously completed contract ratification
paperwork; and,

4. Complainant was issued a memorandum requesting ratification of an
unauthorized contract commitment, which stated that she had been counseled on
the contract ratification process.2

The Agency accepted the complaint and conducted an investigation. The investigative record
reflects the following salient evidence relating to the subject claims.

Complainant’s second line supervisor is the Chief of Police (American national origin)
(hereinafter referred to as “the Chief”).

Complainant testified that her disability is a permanent mental illness for which she takes
medication. The medication produces side effects and has a significant impact on her everyday
life. Complainant said she is not capable of concentrating on tasks that were once ordinary. Her
doctor has given her permanent restrictions, including that she cannot work in the Police
Department due to stress caused by her supervisors. We presume, for purposes of analysis only
and without so finding, that Complainant is an individual with a disability. On June 26, 2017, she
testified she requested a reasonable accommodation and was provided a temporary position.

The Chief stated that he received a notification from a contractor that he had not received
information about his pay order. The Chief asked Complainant to research her records and it was
discovered that the contract had not been awarded (claim 3). The Chief stated that he then
contacted the Contracting Officer and was told the contract was never issued and the contractor
did the work without a contract, which is a violation of federal law.

The Contracting Officer then informed him to initiate and submit a “Ratification” package per
regulations, including a memorandum stating the person entering the requirement and their
supervisor complete Unauthorized Commitment Training, and to include certificates (claim 4).
Pursuant to the Contracting Officer’s request, the Chief completed the 1-hour training, and asked
Complainant to also complete the training as well (claim 2).

On June 7, 2017, Complainant was handed a draft Request for Ratification of an Unauthorized
Commitment that stated she was counseled about the contract ratification process (claim 1).
Complainant believed she was being disciplined for following a process that had been in place
for ten years and that was approved by her supervisors. Complainant discussed this issue with
the Chief and informed him she should not be disciplined. The Chief agreed with Complainant.
The Chief stated that Complainant was not at fault, so he did not provide formal counseling.

2 Complainant withdrew a separate claim regarding sick leave and leave without pay.

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Instead, the Chief only gave a reminder to ensure further contracts were awarded prior to the
contractor being advised to proceed. The Chief later altered the language of the memorandum to
reflect this but noted that Complainant left the Agency prior to her seeing the final memorandum.

The record contains a Request for Ratification of Unauthorized Commitment, dated July 12,
2017, that states in section I:

[Complainant] has ensured all requirements and commitments have been entered
in a timely manner. [Complainant] has never had any unauthorized commitments
in the past. We feel that no inappropriate actions were taken on the part of
[Complainant] or the Police Service to fulfill this mandatory requirement.

The Request for Unauthorized Commitment is signed by the Chief, the Chief of the Fiscal
Office, and the Director.

After an 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), finding no
discrimination.

The instant appeal followed. On appeal, Complainant asserts that the claims identified above had
an impact upon her career, salary, grade, and benefits, as she was forced to use vacation time, all
of her accrued sick leave, advance leave, and then forced to apply for disability retirement.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation 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; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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
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evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The record
demonstrates that an incident, which was deemed no fault of Complainant, occurred in the
workplace. The Chief and Contracting Officer resolved to rectify the issue. This action involved
drafting a memorandum to acknowledge the situation and to have the Chief and Complainant
undergo a 1-hour training course. The Chief acknowledged Complainant’s statements that she
was not at fault, and defended her actions to the Contracting Officer. At no point was
Complainant ever facing disciplinary actions for her work. In fact, the Chief made it clear in the
final memo that Complainant completed her tasks as expected, and that she did not act
inappropriately in any manner

In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory
animus. Complainant has not provided any evidence that suggests that the Agency's reasons were
pretext for discrimination based on her national origin or her disability. Finally, we note that
Agency management was not even aware of Complainant’s disability until June 26, 2017, a
month after she was initially counseled regarding the incident at issue.

The Agency's final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
ECONSIDERATION (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
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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. 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

March 5, 2019
Date