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

Equal Employment Opportunity Commission

Apr 2, 2019

2019001750 (E.E.O.C. Apr. 2, 2019)

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

Irving A.,1
Complainant,

v.

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

Appeal No. 2019001750

Agency No. 2003-0635-2018100566

DECISION

On January 4, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 8, 2018, final decision concerning an equal employment opportunity (EEO) complaint
claiming 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Police Lieutenant, GS-8, at an Agency
Medical Center in Oklahoma City, Oklahoma.

On December 15, 2017, Complainant filed a formal EEO complaint claiming the Agency
discriminated against him based on race (Native-American and African-American), disability
(acute bilateral low back pain with bilateral sciatica),2 and in reprisal for prior protected activity
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 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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1. on October 3, 2017, the facility’s Police Chief (“the Chief”) denied
Complainant the opportunity to be reassigned or rotated through the position
of Secretary, GS-07;

2. on October 4, 2017, Complainant learned that the Chief did not select him
for the supervisory position of Police Captain, GS-9, under Vacancy ID
2010533; and

3. on October 17, 2017 the Chief issued Complainant a letter of reprimand for
failure to follow the Agency’s national rules of behavior.

The Agency accepted the complaint and commenced an investigation. Anticipating that its
investigation would be delayed beyond 180 days after Complainant filed his formal complaint, the
Agency notified Complainant he had the right to request a hearing before an EEOC Administrative
Judge (AJ) after June 13, 2018. Nothing in the record reflects that Complainant requested a
hearing. The Agency’s investigation concluded on July 20, 2018. The Agency provided
Complainant with a copy of its report of investigation.

The evidence developed during the investigation shows that Complainant claimed he was not
allowed to rotate into the position of Secretary to the Chief where he could have gained valuable
experience that would have made him better qualified for promotion to Captain. Instead, one of
Complainant’s coworkers (“CW”) (Caucasian) was allowed to rotate into the position and was
later promoted to Captain. According to the Chief, he detailed CW into the Secretary position
because he had prior experience in the same position at another Agency facility. The Chief also
indicated that he was not aware of Complainant’s interest in the position until October 2017, and
Complainant could not have performed the duties of the position during the period in question
because he was on medical leave due to a work-related injury.

With regard to the selection for the Captain position in October 2017, the investigation indicated
that a four-person panel interviewed both Complainant and CW (the eventual selectee) for the
position and made a recommendation to select CW to the Chief. Both candidates were interviewed
over the telephone and asked the same performance-based questions. CW was scored higher than
Complainant by the panel based on their stated impression that CW answered the questions more
accurately and completely than Complainant. He was also judged to have better leadership
qualities than Complainant. The Chief averred that he felt both Complainant and CW were equally
qualified for the promotion to Captain and believed either could perform the duties. So, to make
the selection decision, he went with the candidate who was scored higher by the panel. The record
shows that panel scored CW approximately 50 points higher than Complainant.

Finally, Complainant alleged discrimination when he was issued a reprimand in October 2017 for
alleged failure to follow the Agency’s rules of behavior. The record reflects that while out on
workers’ compensation leave, Complainant came into the facility over a weekend and ordered a
new subordinate police officer to allow him to use his computer to access the VISTA time and
attendance program.
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Because he was out on leave, Complainant’s access to the program had been suspended.
According to the Chief, this was a violation of the Agency’s information security rules. The Chief
said Complainant was issued the letter of reprimand because, as a seasoned supervisor, he ordered
a new junior employee to break an Agency rule. The new officer, still on probation, was issued a
formal counseling and told further infractions could be grounds for removal.

On December 18, 2018 the Agency issued a final decision finding no discrimination.

The instant appeal followed. On appeal, regarding claim 1, Complainant disputes the Chief’s
account that Complainant had first requested a rotation in the Chief’s office in October 2017.
According to Complainant, he had been seeking a rotation as early as January 23, 2017, when
Complainant’s physician recommended light desk duty.

Regarding claim 2, Complainant asserts that the Chief attempted to discourage him from applying,
by not notifying Complainant about the vacancy while Complainant was on medical leave.
Additionally, Complainant states that the Chief had directed one of the selection panel members
to write interview questions which were not in accordance with regular performance-based
interview (PBI) questions that the Agency had certified. Complainant also alleges that the Chief
had fabricated interview scores after-the-fact.

Regarding claim 3, Complainant argues that the Chief improperly issued him formal written
discipline, whereas Caucasian police officers would have received an informal verbal counseling
for so misconduct.3

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”).

Claim 1: Denial of request for rotation to assignment in Chief’s Office

3 On appeal, Complainant submits an audio file which purports to capture a conversation between
Complainant and the Chief on an unspecified date. We have reviewed the audio file, and determine
that its authenticity and probativeness have not been established, and we therefore will not consider
it further. We note, however, that even if we were to have considered this file, it would not have
had any impact upon our determination on this claim.
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For Complainant to prevail, he had to establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the Agency’s employment actions. See McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then
shifts to the Agency to articulate a legitimate, nondiscriminatory reason those actions. See Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995). To ultimately prevail, Complainant had to prove the
Agency’s explanations were pretextual, by a preponderance of the evidence. Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993).

On appeal, Complainant argues that he established a prima facie case for discrimination.
Regarding the basis of reprisal, Complainant states he had initiated an EEO complaint related to a
2013 non-selection for promotion to Police Captain, GS-9. Complainant states the matter had been
“filed at the local level.” Complainant states further that the Chief had known that Complainant
had engaged in EEO activity as a result of his 2013 non-selection. Additionally, Complainant
stated that the Chief was well-aware of the disabling nature of Complaint’s on-the-job injuries,
because of Complainant’s extended leave from work while on workers’ compensation.

Assuming arguendo that Complainant established a prima facie case regarding the raised bases,
the Chief explained that another officer was detailed into the Secretary position because that
employee had previously performed that function at the Phoenix VA Police Department.
Complainant failed to meet his burden of proving to a preponderance of the evidence that the
Agency rationale was pretextual to mask a denial based on Complainant’s disability or other
protected characteristics.

Claim 2: Non-selection for promotion to Police Captain

For non-selection claims, the most effective way to prove discriminatory non-selection would be
for Complainant to demonstrate his qualifications were “plainly superior” to those of the selectee.
Wasser v. Dep’t. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647
F.2d 1037, 1048 (10th Cir. 1981). Here, Complainant claims that the promotion and interview
process are inherently biased against him. However, Complainant did not rebut the Agency’s
position that it had interviewed both he and the selectee over the phone and asked them the same
questions. Based on the interviews, the four-person panel scored the selectee considerably higher
than Complainant and recommended his selection. The Chief chose the selectee based on the
panel’s scoring. The record does not support a determination that Complainant’s qualifications
were so plainly superior to support inferring discriminatory nonselection.

Claim 3: Reprimand for logging-in with another police officer’s credentials

We assume that the Agency was fully aware of Complainant’s prior EEO activity but nevertheless
found unpersuasive Complainant’s argument that the Chief reprimanded him for conduct that had
previously been tolerated or encouraged.
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Complainant failed to prove a sufficient causal or temporal link between his discrimination
allegation from 2013 and the formal discipline that he received in 2017. Instead, a fair reading of
the record supports that the Agency legitimately reprimanded Complainant for violating computer
security controls. In spite of Complainant’s assertion that the Agency permitted new officers to
work-around such rules, Complainant acknowledged that he was otherwise aware of the
impropriety of accessing the Agency’s networks through using another employee’s Personal
Identity Verification (PIV) cards.

CONCLUSION

We carefully considered the record, and all statements and arguments submitted on appeal, and we
AFFIRM the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. 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.
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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 2, 2019
Date