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

Equal Employment Opportunity Commission

Mar 7, 2013

0120120323 (E.E.O.C. Mar. 7, 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. 0120120323

Agency No. 200105482010104554

DECISION

Complainant filed an appeal from the Agency’s September 21, 2011 Final Decision 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
Decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accounts
Receivable Technician at the Agency’s Fiscal Section, Veterans Affairs Medical Center facility
in West Palm Beach, Florida. On September 30, 2010, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of race (Black), sex (male),
color (black), disabled veteran status, and age (52) when:

(A) On June 24, 2010, Complainant was not referred for the position of
Communications Specialist, GS-1001-11, located in Employee Education
Service;

(B) On July 16, 2010, Complainant was not referred for selection to the position of
Purchasing Agent, GS-1105-7, announcement number 10-108A;

(C) On July 19, 2010, Complainant became aware that he was not afforded training
opportunities;

(D) On August 18, 2010, Complainant was not referred for the position of
Purchasing Agent, GS-1105-7, vacancy announcement number 10-1 OSA;
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(E) On September 13, 2010, Complainant was advised that vacancy announcement
number ES-10-98, for the position of Prosthetic Representative, GS-672-7,
target 9 or GS-9 was cancelled;

(F) Complainant was subjected to a hostile work environment based on his status as
a Union Steward; and

(G) On January 6, 2010, Complainant was referred but not selected for the position
of Prosthetics Representative, GS-672-7, target 9, Excepted Service Certificate
number 09-164.

By letter dated December 15, 2010, the Agency dismissed Complainant’s claims that he was
discriminated against on the basis of disabled veteran status, pursuant to 29 C.F.R.
§1614.107(a)(1) for failure to state a claim. The Agency found that veteran status is not a
basis of discrimination enforced by the Commission. The Agency dismissed claims (A) and
(G) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The
Agency found that Complainant’s initiated contact with the Agency’s EEO complaints process
on August 23, 2010, which was beyond the 45-day time limit. The Agency found no evidence
that Complainant was unaware of the time limit for contacting an EEO Counselor and found no
circumstances to warrant a tolling of the applicable deadline. The Agency therefore dismissed
claims (A) and (G) pursuant to 29 C.F.R. § 1614.107(a)(2). Regarding claim (F), the Agency
found that Complainant sought to add this claim to his complaint by letter dated October 24,
2010. However, the Agency found this claim was neither like, nor related to the claims of
Complainant’s original complaint. The Agency therefore dismissed this claim pursuant to 29
C.F.R. § 1614.107(a)(2) because Complainant failed to present this claim for counseling.

The Agency accepted the remaining claims (B), (C), (D), and (E), of Complainant’s complaint
for investigation.1

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). When Complainant did not request a hearing within the
time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).
In its Decision, the Agency found that the Agency’s prior dismissals were proper and the
Agency affirmed the dismissals of claims (A) and (G) for untimely EEO Counselor contact
pursuant to 29 C.F.R. § 1614.107(a)(2) and affirmed the Agency’s dismissal of his claims
based on disabled veteran status and union steward/harassment (claim (F)).

1 We have preserved the letter labels assigned to Complainant’s accepted claims in the
Agency’s notice of December 15, 2010, for clarity. In its Final Decision, the Agency
relabeled the accepted four claims.
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The Agency’s Final Decision dismissed claim (C) pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. The Agency found that Complainant did not allege that he applied for
training that was denied. The Agency found that Complainant was not aggrieved because
Complainant did not apply for training, and thus suffered no loss or harm to a term or
condition of employment for which a remedy exists.

The Agency considered Complainant’s request of February 7, 2011, to amend his complaint to
add an additional claim that he was denied a reasonable accommodation for leave to respond to
inquiries of the EEO investigator. The Agency affirmed its prior determination that this claim
should be counseled as a new separate complaint.

Regarding claims (B) and (D), the Agency found that Complainant was not selected for the
position of Purchase Agent for either announcement because his application materials did not
demonstrate that Complainant possessed the requisite specialized experience necessary.
Regarding claim (E), the Agency found that the official responsible for making a selection
from the certificate for this position (Prosthetics Representative), decided to cancel the
announcement before he received the certificate of eligible candidates, and that all applicants
were informed that the announcement had been cancelled. The Agency found that
Complainant did not establish pretext regarding claims (B), (D), or (E), because he did not
show that he possessed the necessary specialized experience (claims (B) and (D)) and because
Complainant did not present any evidence that discrimination motivated the cancellation of the
announcement identified in claim (E). The Agency’s Final Decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination on any basis as
alleged.

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

Basis of Disabled Veteran Status

With respect to Complainant’s complaint based on his status as a veteran or disabled veteran,
we find the Agency properly dismissed this basis of Complainant’s complaint pursuant to 29
C.F.R. § 1614.107(a)(1). The Commission has repeatedly held that veteran preference or
status is not a protected basis for filing an EEO complaint and therefore such complaints are
not within the purview of EEOC Regulations. See Devereux v. United States Postal Service,
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EEOC Request No. 05960869 (April 24, 1997). The Commission has found that being a
disabled veteran is also not within the purview of EEOC regulations. Corpening v. United
States Postal Service, EEOC Appeal No. 01A21712 (April 25, 2002). Complainant has not
claimed disability discrimination in claims (A) – (G).

Claims (A) and (G)

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity Counselor within 45
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action. The Commission finds the Agency properly
dismissed claims (A) and (G) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
Counselor contact. We find that Complainant does not present any persuasive reasons for his
failure to initiate the EEO process within the 45-day time limit.
Claim (C)
We find that the Agency properly dismissed claim (C) regarding Complainant’s allegation that
he was denied training. We concur with the Agency that Complainant presented no evidence
that he requested training or otherwise applied for available training programs as did his co-
workers. We find this claim is properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) on
the grounds that Complainant was not harmed and suffered no loss as a result of any Agency
action. Even if claim (C) stated a claim, we would find no discrimination because
Complainant failed to show what training he was denied or that any alleged denial of training
was motivated by discrimination.

Claim (F)
We find that on appeal Complainant does not challenge the Agency’s finding that Complainant
failed to raise a claim of harassment during the counseling process and that this claim is not
like or related to the claims Complainant presented for counseling. We therefore affirm the
Agency’s dismissal of Complainant’s claim of harassment, claim (F), pursuant to 29 C.F.R.
§1614.107(a)(2). Furthermore, we also find the Agency properly dismissed this claim
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Union activity is not, as
the Agency found, a basis of discrimination enforced by the Commission. We note that
Complainant has not claimed retaliation for protected EEO activity.

Claims (B), (D), and (E)

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
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inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since 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).

Regarding claims (B) and (D), we find that the evidence shows that Complainant’s application
materials were reviewed and Complainant’s lack of experience in the position of Purchasing
Specialist was noted. We find the evidence supports the Agency’s conclusion that Complainant
was not referred based on the assessment that he did not meet the stated requirements of the
position advertised. We find the evidence shows that each of the selected candidates was
assessed as possessing purchasing experience. We decline to substitute our judgment for that
of the Agency with respect to evaluating the quality of the information Complainant supplied
with his applications describing his purchasing experience (home purchases) in contrast to that
experience described by the candidates referred for selection (e.g., medical supplies
procurement). We find that Complainant did not show that more likely than not
discrimination on any basis motivated the Agency’s decision to not refer his application for
selection as described in claims (B) and (D).
Regarding claim (E), we find no evidence that the selecting official was provided with the list
of eligible candidates before he requested that the announcement be cancelled. We find the
evidence is consistent that the selecting official did not cancel the announcement after he
learned that Complainant had applied, but did so before he was provided with the certificate of
eligible candidates. Therefore, we find no evidence of discrimination in claim (E).
Denial of Leave Amendment
We note that in a prior decision concerning the same matter, the Commission held that
Complainant had been given official time and that this claim was a denial of leave claim. Hill
v. Department of Veterans Affairs, 0120113497 (December 5, 2012). We agree with the
Agency that this claim was not properly part of the instant complaint and that Complainant
should initiate EEO counseling if he still wishes to pursue this claim. If Complainant has
already requested EEO counseling, then the Agency should process the matter pursuant to 29
C.F.R. §1614.105 et seq.

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Decision.

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 tends 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.
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 (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

March 7, 2013
Date