Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 20, 2015

01-2013-3326-0500 (E.E.O.C. May. 20, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120133326

Agency No. 200H-0632-2012100110

DECISION
On September 6, 2013, Complainant filed an appeal from the Agency’s August 28, 2013 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND
Complainant worked as a GS-5 Nursing Assistant at the Agency’s Medical Center in
Northport, New York. On January 13, 2012, he filed an EEO complaint in which he alleged
that his Nurse Manager (NM) retaliated against him for previous EEO activity by reprimanding
him on August 1, 2011, and by reneging on a promise to promote him to GS-6 that she
allegedly made on January 3, 2012. Investigative Report (IR) 67.

According to Complainant’s own affidavit and that of the NM, Complainant had received a
written counseling memorandum for poor performance in connection with the care of an
immobile, bedridden patient. Part of his duties including cleaning this patient and changing the
patient’s linens. The NM testified that the patient was soaked in urine and soiled with feces,
that the patient had no linens, and that the patient had no bed alarm in place. The NM also
testified that the reprimand was meant to impress upon Complainant his obligation to provide
the highest quality care to the patients. IR 234-35, 237-242, 247-49, 251-52, 275-76.

Complainant averred that on January 3, 2012, he asked NM during a one-on-one meeting in
her office why he had not been promoted to GS-6, and that NM had promised to look into the
matter but failed to do so. IR 255-56. Complainant admitted, however, that NM did not give
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2
him a time frame for when she would look into his promotion eligibility. IR 260. NM denied
that she had ever made a promise to promote Complainant. IR 278, 280-81. Under the
collective bargaining agreement that governed Complainant’s employment, employees seeking
promotion had to submit a self-assessment of their qualifications for promotion, after which the
first-line supervisor would make a recommendation. If the supervisor recommended against
promotion, he or she would have to provide written notice of the reasons for that
recommendation to the employee. IR 331, 335-38. There are no indications in the record that
Complainant ever initiated the promotion process by submitting the necessary self-assessment
to NM.

At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to
request a hearing before an Equal Employment Opportunity Commission Administrative Judge.
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). The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order to prevail on his reprisal claims, Complainant would have to
prove, by a preponderance of the evidence, that the NM was motivated by unlawful
considerations of his previous EEO complaints when she reprimanded him in August 2011 and
allegedly declined to promote him in January 2012. Reeves v. Sanderson Plumbing Products,
Inc.

, 530 U.S. 133, 143 (2000).
When asked by the investigator why he believed that NM’s actions were retaliatory,
Complainant replied that, because of his prior complaints, particularly a complaint that he had
filed in 2007, he had been repeatedly passed over for promotion, falsely accused of not doing
his work, and subjected to a hostile work environment. IR 255, 266-67. However, he has not
presented any sworn statements from other witnesses or documents that contradict the
explanations provided by NM or which call NM’s veracity into question. It is Complainant’s
burden to establish the existence of an unlawful motivation on the part of the responding
management officials by a preponderance of the evidence, and more is required to meet that
burden than merely expressing one’s belief. We therefore find, as did the Agency that
Complainant failed to satisfy his burden of proof as to the existence of a retaliatory motivation
on the part of NM with respect to either of his reprisal claims.

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

0120133326

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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

Date
May 20, 2015