Geoffrey P.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 17, 2017

0120150365 (E.E.O.C. Mar. 17, 2017)

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

Geoffrey P.,1
Complainant,

v.

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

Appeal No. 0120150365

Agency No. 200J-0578-2014100324

DECISION

On October 31, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s October 20, 2014, 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

Complainant worked as a Health Care Technician (HCT) at the Agency’s Medical Center in
Hines, Illinois. On December 19, 2013, Complainant filed an EEO complaint in which he
alleged that his first-line supervisor, the Clinical Nurse Manager for Mental Health (S1) and
his second-line supervisor, the Associate Director for Patient Care Services (S2) discriminated
against him on the bases of race (Caucasian), sex (male), and in reprisal for prior protected
EEO activity when, on October 25, 2013, S1, under the direction of S2, had Complainant
detailed to the Environmental Management Service (EMS).

The Agency investigated the Complaint and notified Complainant of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing, but subsequently withdrew his request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The

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.
0120150365

2
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

On October 24, 2013, S2 issued Complainant a notice that he would be temporarily reassigned
to EMS, effective the following day, until further notice. The detail resulted from a
substantiated charge that Complainant had abused a patient. IR 196. On December 6, 2013,
S1, with the concurrence of S2, reassigned Complainant to a position within the Patient
Administrative Service. IR 197. According to the affidavits of S1 and S2, as well as the
statements of various witnesses to the encounter, Complainant displayed rude and
confrontational behavior toward a patient who had approached him regarding the collection of
a urine specimen and toward another HCT from whom the patient sought assistance after
Complainant had refused to help him. IR 147-49, 151-53, 156, 198, 202-05, 207-10.

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. (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”).

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 making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that S1 or S2 was motivated by unlawful
considerations of his gender, race, or previous EEO activity when they detailed him to the
EMS. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Harris
v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). In circumstantial-evidence cases such as
this, Complainant can establish motive by presenting evidence tending to show that the reason
articulated by S1 and S2 for the temporary detail was a pretext, i.e., not the real reason but
rather a cover for discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515
(1993).

While Complainant claimed that he was not told the reason for his detail, the October 24,
2013, notice and the affidavits of S1 and S2 clearly identified patient abuse. When asked why
he believed that the incident was discriminatory, Complainant averred that two female HCTs,
one Black, one White, had also abused patients but were not detailed out of patient care. IR
137-38. S1 and S2 both responded that no allegations of patient abuse by these individuals had
been brought to their attention. IR 148, 152. Apart from his own assertion, Complainant has
0120150365

3
submitted neither any affidavits, declarations or sworn statements from other witnesses or
documents that contradict the explanations provided by S1 or S2, or which cast doubt upon
their veracity.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that he was discriminated
against, as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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).

0120150365

4
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

March 17, 2017
Date