Shaun N.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 27, 2017

0120152219 (E.E.O.C. Oct. 27, 2017)

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

Shaun N.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120152219

Agency Nos. 200H-0503-2013104561, 200H-0503-2014104306

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated May 28, 2015, finding no discrimination
regarding his complaints 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. For the
following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

In his complaints, filed on December 3, 2013, and September 15, 2014, Complainant alleged
discrimination based on disability (epilepsy, speech disorder, migraines, hand tremors), and in
reprisal for prior EEO activity when:

(1) On July 31, 2013, he was not selected for the position of GS-0306-9/T-11 Information
Specialist (Privacy Officer) under Announcement #AA-2013-912087-CM-118;

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) On August 8, 2013, he was not selected for the position of GS-0301-11 Program
Specialist (Contracting Officer’s Technical Representative) under Announcement #AA-
2013-910474-CM-114;

(3) His immediate supervisor disclosed confidential medical information about him in
violation of the Rehabilitation Act on May 14, 2012, April 15, 2013, and on an
unspecified date in late 2013;

(4) On July 8, 2014, his request for a reasonable accommodation was denied; and

(5) On August 25, 2014, he was not selected for the position of GS-301-11 Program
Specialist (Contracting Officers’ Technical Representative) under Vacancy
Announcement No. AA-2014-1130922-EB-069.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency issued its final Agency decision finding no
discrimination and concluding that it asserted legitimate, nondiscriminatory reasons for its
action, which Complainant failed to rebut. Complainant appealed the Agency’s final decision.2

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was employed by the
Agency as an Administrative Officer, GS-9 in the Physical Medicine and Rehabilitation Service
at the Agency’s Medical Center in Altoona, Pennsylvania. Complainant indicated that he was
diagnosed with epilepsy in 1994, following an injury he sustained in the military; and he also had
aphasic speech (difficulty with word finding) due to a head injury. Complainant acknowledged
that the Agency accommodated his disabilities by putting carpet in his office to reduce the risk of
injury during a fall and allowing him to telework.

2 Complainant also argues and we agree that the Agency’s August 5, 2015 brief in response to
his appeal was filed untimely. Thus, we will not consider the Agency’s brief in this decision.
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Regarding claim (1), Complainant claimed that: on July 15, 2013, he applied for the Privacy
Officer position at issue; on July 26, 2013, he was interviewed; on July 31, 2013, he had a
second interview; and later that day, he received a notification that he was not selected for the
position. The Selecting Official (SO1) indicated that three panelists reviewed three candidates’
applications and interviewed them. After the interview, the panelists gave Complainant a total
average score of 34 and the ultimate selectee, a Supervisor, Records Management Section, 32.67.
One candidate withdrew her application. SO1 stated that since Complainant and the selectee’s
scores were very close, he decided to meet with them and ask them about their work experience
and their previous related or qualifying work experience. After meeting with them, SO1
indicated that he decided to select the selectee for the position at issue because Complainant’s
work experience was not directly related to the position at issue and was not recent whereas the
selectee’s experience was related to the position at issue. Specifically, SO1 stated that the
selectee: worked in the area of Medical Information and in the private hospitals; she was a
director at a local hospital of medical information from 1988 to 2003; she was a director of the
medical records department with the responsibility of Privacy Officer; she had a certificate in
Health Care Privacy; she was certified in Health Care Privacy since 2003; she taught Health Care
Privacy in the community; and she had been an adjunct instructor in several different places.
Complainant indicated that he felt he was highly qualified for the position because he had a
Master’s Degree and a Bachelor’s Degree. SO1 stated that Complainant’s degrees were
considered but they were not required for the position at issue.

Regarding claim (2), Complainant claimed that: he applied for the Program
Specialist/Contracting Officer’s Technical Representative (COTR) position on June 30, 2013; on
July 26, 2013, he was interview by four panelists; and on August 8, 2013, he was notified that he
was not selected for the position. The Selecting Officer (SO2) indicated that the instant positon
was a new position the Agency established and she was looking for a candidate with COTR
experience with complex medical contracts. SO2 indicated that she selected the selectee who
was an Administrative Officer of Acute Medicine and she was the COTR of a major medical
contract as a collateral duty for over six years. Interview panelists indicated that they did take
into consideration Complainant’s Master’s Degree but he lacked recent position related
experience because he had not been assigned COTR duties on any contracts since 2009-2010 and
because he failed to adequately answer all the interview questions. The panelists stated that the
selectee: had experience in managing, coordinating, and monitoring Contracts and Budgets; she
was the “defacto” COTR for many Medical Sharing Contracts; she managed many contracts; and
she was the best candidate for the position at issue.

Regarding claim (3), Complainant’s supervisor denied disclosing Complainant’s medical
conditions to others as alleged. The supervisor indicated that he initially did not know about
Complainant’s medical conditions but on one occasion when Complainant was having a seizure,
a coworker called him; and at that time the coworker told him that Complainant had a history of
seizures. The supervisor also stated that Complainant and the coworker brought up
Complainant’s disability one or two times and discussed it when he was present. The coworker
acknowledged that he initiated the conversation about Complainant’s disability on one occasion
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by saying Complainant “had a seizure last evening and was not feeling well so he is taking a sick
day.”

Regarding claims (4) and (5), Complainant applied for the Program Specialist position at issue
on June 3, 2014. Complainant was qualified for the position and on July 8, 2014, he was
interviewed by interview panelists. The panelists indicated that Complainant began to struggle
around fifteen minutes into the interview and at interview question five, he asked the interview
questions be presented to him in writing and that he be allowed to respond to the questions in
writing. The panelists indicated that they contacted Human Resources for their advice regarding
the situation. Based on Human Resources advice, stated the panelists, Complainant was
provided with the written interview questions and was called back in to finish his interview in
writing. Complainant acknowledged that he left the interview at 10:25 a.m.; he was called back
in at 11:00 a.m.; and he was provided the interview questions in writing (which he completed
within 30 minutes).

The Selecting Official (SO3) for the position stated that six candidates, including Complainant,
were interviewed for the position; and they were asked the same performance based interview
questions which were rated by the interview panelists. SO3 indicated that: Complainant ranked
third out of six candidates; he demonstrated a minimal level of experience in administrating
federal contracts, managing fund control points, and budgets; he managed only three contracts;
and he partially answered or did not answer some of his interview questions. SO3 indicated that
he selected the selectee because: she ranked the highest; she demonstrated a substantial amount
of knowledge and experience in administrating federal contracts and managing fund control
points, and budgets; she managed 58 contracts; and she interviewed very well.

In this decision, we do not address whether Complainant is a qualified individual with a
disability. Furthermore, we note that Complainant has not claimed that he was denied a
reasonable accommodation to perform his position duties; nor has he claimed that he was
required to perform duties beyond his medical limitations. We find that Complainant was
reasonably accommodated during the interview (claim (4)) when he was provided the questions
in writing. We also find no persuasive evidence showing that Complainant’s supervisor
disclosed any of Complainant’s confidential medical information. We find that regarding any of
the claims in the complaint, Complainant failed to show that he was treated less favorably than a
similarly situated employee under similar circumstances. Furthermore, Complainant failed to
show that his qualifications for the positions were plainly superior to the selectees’ qualifications
or that the Agency’s actions were motivated by discrimination. See Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that
Complainant has failed to show that the Agency’s actions were motivated by discrimination as
he alleged.

CONCLUSION

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

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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. 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.

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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

October 27, 2017
Date