Jules H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0120172116 (E.E.O.C. Dec. 7, 2018)

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

Jules H.,1
Complainant,

v.

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

Appeal No. 0120172116

Agency No. 200P-0600-2016102179

DECISION

On June 4, 2017, 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
April 28, 2017, final decision2 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 Housekeeping Aid, WG-3566-3, at the Agency’s Medical Center in
Long Beach, California. On May 18, 2016, Complainant filed an EEO complaint in which he
alleged that the Chief of the Environmental Management Service (hereinafter referred to as “EMS
Chief”) discriminated against him on the bases of race (African-American) and color (Black)
when:

1. From January 2 to February 21, 2016, the Chief denied Complainant overtime; and

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 are accepting this appeal as having been timely filed because the record does not contain
documentation of the date that Complainant actually received the Agency’s final decision and the
Agency does not challenge the timeliness of the appeal.
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2. Since May 28, 2012, the Chief assigned Complainant operating room duties which
were above his pay grade.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). In accordance with
Complainant’s request, 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.

Concerning the first allegation, Complainant averred that the EMS Chief removed him from the
overtime rotation between January 2, 2016 and February 21, 2016, without giving him a reason
for doing so. IR 52-43. He further averred that before he was taken out of the overtime rotation,
he had been working between 16 and 22 hours of overtime, week-to-week. IR 54. The EMS
Chief, who was also African-American, denied that Complainant was ever removed from the
overtime rotation. He responded that Complainant had been offered the opportunity to work
overtime several times, and that Complainant had accepted some of those overtime offers and
rejected others. IR 76-77. He further averred that overtime was usually available due to chronic
staff shortages. IR 77-78.

As to the second allegation, Complainant averred that since May 28, 2012, the EMS Chief had
forced him to take on tasks more appropriate for a WG-04 grade employee, such as using
specialized equipment in the operating suite to ensure that patients’ bodily fluids were properly
flushed. IR 54-55. The EMS Chief and the Chief of Recruitment and Placement, who was also
African-American, both averred that in 2012, a desk audit ordered by the Office of Personnel
Management resulted in the elimination of all Housekeeping Aid positions above grade WG-2. At
the time that policy was implemented, there were four Aids at WG-4 and 31 at WG-3, including
Complainant. These employees were allowed to keep their grades and correspondent pay, and
when they left, they were not replaced. The EMS Chief maintained that all Housekeeping Aids
were performing the same work since the implementation of the desk audit decision. IR 80-83,
90-91, 139-40.

The instant appeal followed. On appeal, Complainant contends that Agency’s reasons for its
actions are pretextual and that Agency officials harbored discriminatory animus against him.
Accordingly, Complainant requests that the Commission reverse the final decision.

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
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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”).

Disparate Treatment

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). As a first step, he would normally 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. Corp. v. Waters, 438 U.S. 567, 576 (1978).

The prima facie inquiry may be dispensed in this case, however, since the Agency 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). Regarding the first incident, the EMS Chief stated that
Complainant was never denied the opportunity to work overtime, and that on some occasions,
Complainant turned down overtime work. Concerning the second incident, the EMS Chief and
the Recruitment and Placement Chief stated that after the elimination of Housekeeping Aid
positions above WG-2, all Housekeeping Aids were required to perform the same work, including
work in the operating suites.

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 Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30,
2008).

When asked by the EEO investigator why he believed that he was denied overtime because of his
race and color, Complainant replied that it was because he had a Latino supervisor who had told
him that there was no overtime work available. IR 57. When asked why he believed that his race
and color were factors in his being assigned higher-graded work, Complainant responded that he
was the only African-American Housekeeping Aid not getting compensated for work in the
operating suites. IR 56-57. The EMS Chief averred that Complainant was not the only African-
American Housekeeping Aid, that the Housekeeping Aids came from various backgrounds, and
that Complainant was informed of the desk audit by representatives from the Human Resources
department during a mediation. IR 83-84.

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Beyond his own uncorroborated assertions, Complainant has provided neither affidavits,
declarations, or unsworn statements from witnesses other than himself nor documents that
contradict the explanations provided by the EMS Chief or the Recruitment and Placement Chief,
or which call their veracity into question. We therefore conclude that Complainant has not
presented evidence sufficient to establish that the Agency’s reasons for its actions were pretextual.
Accordingly, we find that Complainant was not subjected to discrimination as alleged.

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 (M0617)
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. 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

December 7, 2018
Date