, III, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 3, 2014

0120131413 (E.E.O.C. Jun. 3, 2014)

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

, III,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120131413

Agency No. 200J-0695-2012101933

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated February 5,
2012, finding no discrimination with regard to his complaint. For the following reasons, we
AFFIRM the Agency’s final decision finding of no discrimination.

BACKGROUND
In his complaint, dated May 24, 2012, Complainant alleged discrimination based on disability
(post traumatic stress disorder, spinal fusion, and spinal cord injuries) and sex (male) when in
February 2011, he learned that he was not selected for the position of Medical Administration
Specialist, GS-0301-7/10, vacancy announcement MP-11-003-424247-ML. After completion
of the investigation of the complaint, Complainant requested a final Agency decision without a
hearing. The Agency thus issued its final Agency decision concluding that it asserted
legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

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. (November 9, 1999) (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
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of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. A Selecting Official (SO) indicated that Complainant was
qualified and was interviewed for the Medical Administration Specialist position at issue but
was not selected in March, 2011, because he ranked very low, 12th out of 15 applicants.
Specifically, the SO stated that Complainant did not do well during the interview in
demonstrating his relevant work experience. The SO stated that she selected a selectee
because: she had been working at the facility for 25 years; had all of the medical experience
necessary for the job; had outstanding references; had many awards; worked the off tours; and
interviewed very well. Complainant claimed that he was overqualified for the position because
his background skills and high education, i.e., he was an attorney with a Bachelor’s Degree in
Social Work, worked as a police officer and “EMT,” and had experience in insurance with
medical claims as an underwriter. However, we find that Complainant failed to show that the
foregoing experience and his high education were required for the position at issue. We also
find that Complainant failed to show that his qualifications for the position were plainly
superior to the selectee’s qualifications or that the Agency’s action was motivated by
discrimination. See Wasser v. Department of Labor

, EEOC Request No. 05940058
(November 2, 1995).
The SO also indicated that during the interview, Complainant misrepresented his work
experience when he told her that he helped set up a veteran program with the Milwaukee
County Court System since she knew that the program did not exist at the time of the interview
in February 2011. On appeal, Complainant merely contends without evidence that at the time
of the interview, he was indeed helping to establish the program which was officially
established in 2013. We find that even if Complainant’s contentions were true, there is no
evidence that the SO’s misbelieving Complainant’s statement at the time of the interview was
based on discrimination as he alleged. Complainant also claimed that in February 2012,
almost a year after the selection at issue, the SO made derogatory, inappropriate remarks about
him to an individual saying that Complainant “was crazier than a bedbug.” SO denied making
such a statement. Complainant also argues that the SO stated that she “works with a great
group of girls” and that such a statement shows the selection was motivated by sex. We find
that there is no persuasive evidence that the SO’s decision not to select Complainant was
motivated by discrimination as he alleged. Even if these statements were made by the SO as
alleged by Complainant, they do not, under the circumstances. show by a preponderance of the
evidence that his claimed disabilities or sex were considered in the selection process. We note
that on appeal, Complainant indicates that he was subsequently hired by the Agency in August
2011, and is currently working as a Rating Veterans Service Representative, GS-9, at the
Agency’s Regional Office in Milwaukee.

After a review of the record, we find that Complainant failed to show that he was treated less
favorably than a similarly situated employee under similar circumstances. We do not address
0120131413

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in this decision whether Complainant is a qualified individual with a disability. Furthermore,
we note that Complainant has not claimed that he was denied a reasonable accommodation.
Based on the foregoing, we find that Complainant failed to show that the Agency’s action was
motivated by discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
June 3, 2014