Adalberto P.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 29, 2016

0120142387 (E.E.O.C. Mar. 29, 2016)

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

Adalberto P.,1
Complainant,

v.

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

Appeal No. 0120142387

Hearing No. 480-2012-00665X

Agency No. 200P-0600-2012100183

DECISION

Complainant filed an appeal from the Agency’s May 15, 2014 final order concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse
at the Agency’s Healthcare Complex in Long Beach, California. On January 26, 2012, he
filed an EEO complaint in which he alleged that his second-level supervisor, the Chief of
Geriatrics, Rehabilitation Medicine and Extended Care (S2) discriminated against him on the
bases of disability (residual effects of injuries to lower back, knee and shoulder) and reprisal
(prior protected EEO activity) by temporarily reassigning him to administrative duties on
September 27, 2011, pending an inquiry into whether he improperly disclosed confidential
patient information.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
1This 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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Although Complainant timely requested a hearing, the AJ assigned to the case granted the
Agency’s December 4, 2012, motion for summary judgment over his objection and issued a
decision on April 24, 2014, without holding a hearing. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel selections
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). Put another way, the laws the Commission enforces cannot prevent an
employer from making personnel-related decisions with which its employees disagree unless
those decisions are rooted in a statutorily proscribed motivation. See Joni M. v. Department
of Homeland Security – Transportation Security Administration, EEOC Appeal No.
0120142884 (February 1, 2016).
What this means in practical terms is that an Agency’s personnel decision cannot be found
discriminatory simply because it appears that the employer acted unwisely, or that the
employer’s decision was in error or a misjudgment. Kendra W. v. Department of Veterans
Affairs, EEOC Appeal No. 0120112074 (April 18, 2014). In order to warrant a hearing,
Complainant would have to present enough evidence to raise a genuine issue of fact as to
whether S2 was actually motivated by unlawful considerations of his disability or previous
EEO activity in connection with her decision to temporarily reassign him to administrative
duties. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000).
In circumstantial-evidence cases such as this, Complainant can raise a triable issue regarding
motivation by presenting documents or sworn testimony from other witnesses showing that the
reasons articulated by S2 for reassigning were pretext, i.e., not the real reason but rather a
cover for disability discrimination or reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S.
502, 515 (1993) citing Burdine, 450 U.S. at 253. 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. United States Postal Service,
0120060802 (November 20, 2007), request for reconsideration denied EEOC Request No.
0520080211 (May 30, 2008).

In a memorandum addressed to Complainant dated September 27, 2011, a proficiency report
dated November 29, 2011, and in her investigative affidavit, S2 stated that she temporarily
reassigned Complainant in order to conduct an inquiry into whether Complainant disclosed the
names and social security numbers of patients to the office of a congressman. Investigative
Report (IR) 81, 95, 108. A fax sent by Complainant to one of the congressman’s staff includes
names and the last four digits of the social security numbers of several patients. IR 99-100.

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When asked why he believed that his disability and previous EEO activity were factors in S2’s
decision to temporarily reassign him, Complainant replied that S2 did not give him a reason for
the reassignment, and that he did not recall disclosing patient information to an outside party
Investigative Report (IR) 77-78, 94. He has not submitted any sworn statements from other
witnesses or documents that contradict the explanation provided by S2, or which call S2’s
veracity into question. Indeed, the presence of the redacted names and numbers in the fax sent
to the congressman’s staff member clearly supports S2’s version of events. We therefore find,
as did the AJ, that no evidence of pretext exists and that consequently, Complainant failed to
raise genuine issue of material fact in connection with S2’s motivation in deciding to
temporarily reassign Complainant on September 27, 2011.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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

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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

March 29, 2016
Date