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

Equal Employment Opportunity Commission

Sep 13, 2013

0120122121 (E.E.O.C. Sep. 13, 2013)

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

Complainant,

v.

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

Appeal No. 0120122121

Hearing No. 430-2011-00086X

Agency No. 2004-0637-2010102161

DECISION

On March 30, 2012, Complainant filed an appeal from the Agency’s March 1, 2012, final
order 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. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Hospitalist at the
Agency’s medical facility in Asheville, North Carolina.1

On June 24, 2010, Complainant filed
an EEO complaint alleging that the Agency discriminated against him on the basis of national
origin (Indian) when on January 26, 2010, he became aware that management was paying him
less in market pay and base pay than physicians outside his protected class, which impacted his
ability to attain bonuses and pay raises.
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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing
on December 5-6, 2011. The AJ issued a decision on January 27, 2012, finding no
discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged. On

1 Hospitalists are physicians who attend to patients who require acute care.

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appeal, Complainant contends that the AJ erred in finding no discrimination and reiterates his
contention that management officials awarded him a lower salary on the basis of his national
origin.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Here, we find that the AJ’s decision is supported by substantial evidence. Namely, we concur
with the AJ’s determination that assuming, arguendo, that Complainant established a prima
facie case of national origin discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the record shows that, at the relevant
time, Complainant’s total salary was higher than six of the ten Hospitalists at his facility. The
total salary for Hospitalists, such as Complainant, is determined by combining base pay with
market pay. Base pay is a non-discretionary salary determined by position title and length of
service. Market pay is a discretionary amount used by the Agency to raise the total salary of an
employee to a level comparable with what a physician would earn at other facilities. The
record shows that once management officials decide the appropriate total salary for an
employee, they then determine how much market pay is necessary to make up the difference
between the total salary and the base pay. In his hearing testimony, Complainant states that he
finds the Agency’s method of determining market pay “illogical” and that he objects to
management’s use of market pay as a means to keep the total salaries of all Hospitalists
comparable when combined with base pay. Although it is clear that Complainant disagrees
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with the Agency’s actions, he has not shown that these actions are motivated by discriminatory
animus. Nor has he shown that his national origin was a factor in the Agency’s determination
of his total salary.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final order implementing the AJ’s finding of no discrimination.

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

September 13, 2013
Date