Keenan O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 16, 2019

0120181556 (E.E.O.C. Aug. 16, 2019)

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

Keenan O.,1
Complainant,

v.

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

Appeal No. 0120181556

Agency No. 200P06482017102100

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 14, 2018, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff Optometrist,
GS-14, Step 10, at the Agency’s Eye Care Services, Operative Care, with the Vancouver
Division of the Portland VA Medical Health Care System facility in Vancouver, Washington.
Complainant and another Staff Optometrist, GS-15, (hereafter Selectee) worked at the same
facility and applied for a vacancy, Assistant Chief of Optometry. The Chief of Optometry
(hereafter Selecting Official) is Complainant’s immediate supervisor and was the selecting
official for the position of Assistant Chief of Optometry at issue herein. Complainant and
Selectee were the only two applicants certified for consideration. On March 8, 2017,
Complainant was notified he was not selected for the position. Complainant later learned
Selectee was chosen.

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.
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On May 6, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to
a hostile work environment and discriminated against him on the basis of age (65) when:

1. On March 8, 2017, the Chief of Optometry did not select Complainant for the
position of Assistant Chief of Optometry, Announcement Number VS-17-MDG-
1883403;
2. On March 8, and 15, 2017, Complainant’s coworker commented during meetings
that the older optometrists at her last place of employment were incapable of
doing the job, did not know what they were doing because they were outdated,
and did not see many patients; 2 and
3. On April 19, 2017, Complainant was notified he was not going to be included as
coauthor of a professional publication he worked on, which damaged his chances
for promotion as being published is a requirement.

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 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. The
instant appeal followed.

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”).

In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,

2 Complainant does not allege these comments impacted his compensation, condition, term or
privilege of his employment. Rather, Complainant alleged this event was evidence of his hostile
work environment claim, not as a distinct act of discrimination. We will analyze it accordingly.
As a discrete act, it is insufficient to render Complainant aggrieved.
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411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, assuming arguendo Complainant established a prima facie case of discrimination, we find
that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally,
Complainant failed to show that these reasons were pretextual. Specifically, with regard to
Complainant’s claim that he was not selected for the position of Assistant Chief of Optometry,
Complainant failed to show that his qualifications for the position at issue were plainly superior
to those of the selectee or that the selection was based on his protected basis. The record reflects
Complainant and Selectee were the only two applicants. Selecting Official stated he created a
grid based on the responsibilities of the position to compare each applicant’s qualifications. The
objective criteria considered by the Selecting Official included years of federal service, residency
training, clinical instruction experience and faculty appointments, experience as resident or
student clinical programs coordinator, clinical supervisory experience, scholarly achievements,
and leadership experience in professional optometry at the state and national level. Selecting
Official stated the selection was not based on age, but qualifications for the position. Selectee
had twelve more years of experience as a Staff Optometrist at this facility than Complainant.
Moreover, Selectee had prior experience for an extended period of time at this facility as a
Director of Low Vision Rehabilitation Services, Residency Program Supervisor, and Student
Program Coordinator, which Complainant did not. Additionally, Selecting Official noted
Complainant is the only optometrist on staff without a residency in optometry while Selectee
completed his optometry residency with the Agency in 1995-1996. Complainant argued pretext
as to his nonselection was shown by the fact that he was better qualified than Selectee. However,
we find an independent comparison of qualifications did not show that Complainant’s
qualifications were so plainly superior as to warrant a finding of pretext.

Regarding claim 3, Complainant argues his coworkers’ failure to list him as a coauthor on a
publication in 2017 was discrimination based on his age. Complainant never claims he authored
the published article; rather he, along with many others, worked on the research project to collect
the initial data in 2014 that was the basis of the article. Complainant argues he should have been
listed as an author as others were because he believes they did not write the entire article
themselves but took credit. Complainant stated this would have been his second publication.
Based on Complainant’s concerns, Selecting Official had a group and individual meetings
between those involved and Human Resources to resolve the matter in early March 2017.
Selecting Official stated Complainant was unable to establish quantitative evidence of his
contributions to the research project or article, where other staff members could provide that
information. Ultimately, in group meeting in April 2017, the authors in attendance offered to
submit an erratum to the journal that published the article asking to add an acknowledgement to
Complainant for his contributions. Complainant rejected this offer and was adamant he should be
made an author. We find Complainant has not provided any evidence to support his claim that
his exclusion was based on his protected status.
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In this case, Complainant has also failed to provide any evidence that similarly situated
employees outside of his protected class were treated differently from him. We find that
Complainant has failed to provide any evidence that the incidents cited in the complaint, if they
occurred as Complainant alleged, were motivated by discrimination. Moreover, the incidents are
not sufficiently severe or pervasive to alter the conditions of Complainant’s employment. The
incident in claim 2 as alleged is not sufficiently severe or pervasive so as to constitute a hostile
work environment. Complainant has not proffered sufficient evidence to show that the alleged
harassment was based on his protected bases. Accordingly, Complainant has failed to establish
he was subjected to a discriminatory hostile work environment.

CONCLUSION

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 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

August 16, 2019
Date