Romeo K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 18, 2019

2019001642 (E.E.O.C. Sep. 18, 2019)

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

Romeo K.,1
Complainant,

v.

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

Appeal No. 2019001642

Agency No. 200P-0570-2017104339

DECISION

On January 18, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s December18, 2018 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

On August 7, 2016, Complainant was hired as a Social Worker, GS-9, at the Agency’s Homeless
Patient Align Care Team, VA Medical Center in Fresno, California, subjected to a one-year
probationary period.

On October 28, 2017, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on race (African-American), sex (male), age (over
40), and in reprisal for prior EEO activity when, on June 12, 2017, he was terminated during his
probationary period.

After the investigation of the formal complaint, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC

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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Administrative Judge. In accordance with Complainant’s request, the Agency issued a final
decision on December 18, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie 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 adverse employment action.2 See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions.

It is undisputed that Complainant added a veteran to the Shelter Plus Care (SPC) program by
signing a housing application in the signature block designated for the Case Manager as the
Authorized Service Provider Representative, when he was not authorized to do so. The Chief of
Social Work (Caucasian female, year of birth 1965) stated that Complainant was terminated during
his probationary period for this incident. The Chief stated that shortly before Complainant signed
the authorization form, there had been an interdisciplinary team meeting regarding what services
the team could provide to the veteran with whom Complainant was working.

2 Complainant contended that he believed that the particular veteran’s medical records had been
falsified to deny him access to housing. He reported his beliefs to the Agency’s Privacy Officer
and asserts he was terminated for this report. Based on this information, it is unlikely that this
would constitute activity protected under Title VII to support Complainant’s retaliation claim.
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She said, “the team had indicated what was best for [the veteran] and said [Complainant] had
disregarded that decision and moved forward with his own plan, and then put his signature on the
document to get this veteran into certain housing that [Complainant] did not have authority to do.”

The Human Resources (HR) Officer (Caucasian female, year of birth 1964) stated that on June 12,
2017, she issued Complainant a termination letter effective the same day, June 12, 2017.

The record contains a copy of the June 12, 2017 termination letter in which the HR Officer noted
that the Chief “has recommended that you be terminated from your position for failure to qualify
during your probationary/trial period. Your termination is due to unacceptable conduct.”

As detailed above, Agency management articulated a legitimate, nondiscriminatory reason for its
actions. Beyond his bare assertions, Complainant produced inadequate evidence to establish that
this explanation was pretext designed to mask the true, discriminatory and/or retaliatory motives.
Complainant claims other probationary employees outside his protected groups were provided
with other options (counseling, placement on a performance improvement plan, etc.) rather than
termination. However, the evidence does not establish that these purported comparators were
similarly situated as there is no indication that they engaged in misconduct similar to that of
Complainant, rather than experienced more minor work performance issues.

CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of
the evidence of record does not establish that discrimination occurred.3

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.

3 On appeal, Complainant does not challenge the January 10, 2018 partial dismissal issued by the
agency regarding the bases of whistleblowing and marital status, and two other claims. Therefore,
we have not addressed these issues in our decision.

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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.
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.

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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

September 18, 2019
Date