Alejandro B.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 30, 2016

0120142190 (E.E.O.C. Nov. 30, 2016)

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

Alejandro B.,1
Complainant,

v.

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

Appeal No. 0120142190

Hearing No. 510-2013-00300X

Agency No. 200I-0675-2012104065

DECISION

Complainant filed an appeal from the Agency’s final order dated May 22, 2014, finding no
discrimination with regard to his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In his complaint, dated October 25, 2012, Complainant alleged discrimination based on
disability and in reprisal for prior EEO activity when on July 18, 2012, he was not selected for
the position of Criminal Investigator (CI) under vacancy announcement ORL 12 AE 676632.
Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On April 18,
2014, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

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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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. Complainant, a Police Officer, GS-6, at the Agency’s
Orlando Medical Center, indicated that he applied for the CI position, GS-1811-09/11, in June,
2012, but was not selected on July 18, 2012. The Agency, undisputed by Complainant, stated
that the CI position was a drug-testing designated position and as a CI, the successful applicant
was required to qualify semi-annually with his/her duty weapon. The Agency stated that: due
to his permanent back conditions, Complainant admitted taking narcotics to control his back
pain and refused to submit to random drug testing which was required in order for him to
continue working as a Police Officer;2 on April 30, 2012, the Agency’s occupational health
physician did not medically clear him for duty as a law enforcement officer because he refused
to submit to drug testing; on June 18, 2012, he was also advised of his removal from the
certificate for the position at issue due to medical reasons; and effective July 1, 2012, he was
assigned from his Police Officer position to a Program Support Assistant, GS-6, position. We
note that Complainant being medically not cleared for duty as a law enforcement officer or his
being removed from his Police Officer position is not at issue. The Agency stated that it
nevertheless reviewed Complainant’s application and determined that he was not one of the
best qualified candidates, was not referred for an interview, and thus was not selected for the
position. The Agency indicated that it selected a selectee who was the best qualified candidate.

2 It appears that Complainant filed a prior EEO complaint, Agency No. 200I-0675-
2012101877, on April 21, 2012, concerning his being subjected to random drug testing on
January 13, 2012, on which the Agency found no discrimination.
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Specifically, the Agency indicated that Complainant worked as a Police Officer, GS-6, with the
Agency Orlando facility since April, 2011, and previously, as a Police Officer, GS-7, in its
Providence facility since October, 2008, to April, 2011; he had military and Agency Police
Academy training; and he possessed an Associate’s degree in Criminal Justice. The Agency
stated that the selectee for the position at issue worked as a CI/Instructor, GS-7, at the
Agency’s Pittsburgh facility for 18 month since January, 2011; he was a Police Officer, GS-7,
at the same facility since December, 2008, to January, 2011; in 2008, he became a CI and
Instructor; and he earned 19 Professional Training Course Certifications from 1997 to 2011.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. We find that Complainant failed to show that he was treated less favorably
than a similarly situated employee under similar circumstances or that the Agency’s reason for
his removal from the certificate for the position at issue was a pretext for discrimination.
Furthermore, Complainant failed to show that his qualifications for the position were plainly
superior to the selectee’s qualifications or that the Agency’s actions were motivated by
discrimination. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995). Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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
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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
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

November 30, 2016
Date