Colene R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 17, 2019

0120180435 (E.E.O.C. Apr. 17, 2019)

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

Colene R.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120180435

Agency No. 2003-0580-2017100394

DECISION

On November 13, 2017, Complainant timely filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a
final Agency decision (FAD) dated August 18, 2017, 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.2

BACKGROUND

Up through December 26, 2016, Complainant worked as a contract fee-based Medical Instrument
Technician (Polysomnographic - Sleep). Thereafter, she was converted to an intermittent federal
employee doing the same function as a GS-0649-08. Throughout, she worked at the Michael E.
DeBakey Veterans Administration Medical Center (VAMC), Sleep Lab, in Houston, Texas.

On December 7, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her based on her race (African-American) when:

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.

2 On appeal, Complainant writes that she did not receive the FAD until October 13, 2017. The
Agency represents that in a writing it received, Complainant stated the FAD was sent to an
incomplete address which did not include the number of her apartment.
0120180435

2

1. On October 11, 2016, she learned that Coworker 1 (“CW1” – Asian/Indian) and Coworker
2 (“CW2” - White) were chosen, without competition, as full-time employees with benefits
as Medical Instrument Technicians (Polysomnographic - Sleep) by the VAMC to work in
Houston.3

2. Starting on April 11, 2016, her supervisor, the Lead Polysomnographic Technologist (“S1”
– Hispanic) reduced her hours from 40 to 30 hours a week.

3. Effective December 27, 2016, her status was converted from a contract fee-based worker
who was paid $220 a procedure to an intermittent employee with an hourly wage of $23.99
(also without benefits), resulting in a reduction in pay.

S1 stated that he hired Complainant, without competition, as a contract worker. Report of
Investigation (ROI), Ex. 7-3, at 6, 14, Bates No. 126, 134. Complainant started in June 2008. CW1
was hired from the outside, which Complainant believed was done noncompetitively. S1, who
hired CW1, did not recall if he used a competitive process. S1 stated that he hired CW1 because
he was accredited by the Board of Polysomnographic Technologists to score sleep studies, he
needed a scorer, and for the Sleep Lab to maintain its accreditation with the Sleep Medicine Board,
only accredited technicians are permitted to score sleep studies. Complainant did not have this
accreditation.

CW2 was a contract fee-based Medical Instrument Technician (Polysomnographic - Sleep) at the
VAMC in Houston. S1 converted her without competition to a full-time employee. S1 explained
he did so because he needed someone to cover for him when he was not at the Sleep Lab. He said
CW2 could kept track of everything, notified him when supplies were low, called him at home if
there was a problem with a patient, helped with the other technicians, always came on time and
would come a little early if he needed something. S1 stated that since Complainant started, she had
problems being on time, letting him know when supplies were running low, and at times would
decline to do tasks she was capable of doing.

The VAMC, in preparation for its plans to start a satellite sleep lab in Conroe, Texas, posted
vacancy announcements for two full-time Medical Instrument Technicians (Polysomnographic -
Sleep) employees for Conroe. One of the selectees (“CW3” – Asian Indian) was a contract Medical
Instrument Technician (Polysomnographic - Sleep) at the VAMC in Houston. The other selectee
was CW4 (White). Complainant stated that she did not apply for these positions because they were
in a different city (not Houston). ROI, Ex. 7-1, at 16, Bates No. 85. The plan was to train the
selectees in Houston, and then move them to Conroe when the satellite sleep lab opened. But due
to funding issues, the satellite never opened. Since the selectees were already on board, they were
absorbed into Houston.

3 According to the Lead Polysomnographic Technologist, who all along has been Complainant’s
first line supervisor, he hired CW1 around November 2014, and CW2 around May 2015.

0120180435

3

S1 stated that as a contract worker, Complainant worked on an as-needed basis, with no guaranteed
hours, and the schedules of full-time employee had priority. This statement was fully corroborated
by the statement of a VAMC Human Resources (HR) Specialist (race – Black). The HR Specialist
stated that S1 was required to give priority to the schedules of full-time permanent employees.
ROI, Ex. 7-5, at Bates No. 175. Complainant’s schedule was Monday through Thursday starting
at 8:30 PM until the patient left, around 9 or 10 hours later. To accommodate CW3 and CW4
schedules, S1 changed Complainant’s schedule to Mondays, Tuesdays, and Fridays, one less day.
S1 offered Complainant work on Saturdays, which would allow her to maintain her total hours,
but she declined. ROI, Ex. 7-3, at 7, Bates No. 127.

The HR Specialist stated that Complainant was converted to an intermittent federal employee
because the VAMC eliminated the fee-based program for all contract employees working in the
Sleep Lab. S1 stated he had four other fee-based contract employees in the Sleep Lab who were
also converted to intermittent employees. ROI, Ex. 7-3, at 24 – 25, Bates Nos. 144 – 145. The VA
Handbook 5011/27 Part II, Appendix I (Oct. 21, 2014) provides that intermittent employees may
be used when the demand for services varies over time. ROI, Ex. 7-8, at Bates No. 294.

Following an investigation, the Agency notified Complainant of her right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance
with her request, the Agency issued a FAD. It found no discrimination. The Agency assumed, for
purposes of analysis only, that Complainant established a prima facie case of race discrimination.
The Agency credited the reasons given by S1 and the HR Specialist for its actions and found
Complainant did not show their explanations were pretextual.

The instant appeal followed.

ANALYSIS AND FINDINGS

On appeal regarding issue 1, Complainant argues that she was disparately treated from CW1, CW2,
CW3 and CW4 because they were all provided with full-time employment with benefits and
guaranteed schedules, while she had no benefits or a guaranteed schedule. We find that
Complainant is not similarly situated to CW3 and CW4 because she did not apply for the technician
positions in Conroe for which they were selected. While Complainant explains on appeal that she
did not apply because Conroe is located over 60 miles from her residence, this does not go to
whether she is similarly situated to CW3 and CW4.

Regarding CW1, Complainant disputes that the Sleep Lab needed another scorer, since it already
had three whose sole responsibility was to score, and CW1 rarely scored. Complainant also takes
issue with S1’s statement that CW1 was the only available accredited technician he could find at
the time. She argues that this is preposterous since Board of Registered Polysomnographic
Technologists lists tens of thousands of people who are accredited. Complainant has the burden of
proving pretext and discrimination. She is not similarly situated to CW1 because she was not
accredited to score.
0120180435

4
In addition, she has not shown that having another scorer on staff, who could fill in when needed,
would not in S1’s mind be helpful. While perhaps S1’s statement that he could not find another
scorer is overblown, he worked with CW1 in the past in a private lab, so he readily came to mind.
Complainant stated she was more qualified than CW2 because she started at the VAMC before her
and mentored her, and on appeal disputes S1’s statement that Complainant had a problem reporting
to work on time. Complainant has not shown that S1’s statement that he converted CW2 to full
time because she could cover in the Sleep Lab in his absence is pretext to mask discrimination. S1
explained why he believed CW2 could cover and why he believed Complainant would not do so
well, and Complainant’s longer tenure does not undermine this explanation.

Complainant also argues that S1 deviated from the VAMC’s standard recruitment practice in hiring
CW1 and converting CW2 to a full-time position without competition. We note that S1 indicated
that he hired Complainant as a contract fee-based employee without competition. Further, the HR
Specialist stated that S1 would not be able to hire an employee without competition unless he
provided justification to Human Resources which it formally approved. The record does not show
S1 violated VAMC hiring rules.

Complainant has failed to show that the Agency’s explanations for its actions were pretextual, nor
has she proven discrimination. Accordingly, the FAD is AFFIRMED.

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.
0120180435

5
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

April 17, 2019
Date