Bruce G. Brennen, Sr, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120091912 (E.E.O.C. Aug. 27, 2009)

0120091912

08-27-2009

Bruce G. Brennen, Sr, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Bruce G. Brennen, Sr,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091912

Agency No. 200306712008102352

DECISION

On March 23, 2009, complainant filed an appeal from the agency's February

24, 2009 final agency decision (FAD) 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. The appeal is deemed timely and

is accepted pursuant to 29 C.F.R. � 1614.405(a).

ISSUE PRESENTED

Whether complainant was subjected to discrimination based on his race

(black) or reprisal for having engaged in protected EEO activity when on

February 12, 2008, he was not selected for the position of lead medical

supply technician, GS-6, vacancy announcement no. MP-08-318-AR.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a GS-5 medical supply technician with the agency's Supply, Procurement

and Distribution department (SPD) at the VA Medical Center facility in

San Antonio, Texas.

On June 30, 2008, complainant filed an EEO complaint alleging the

above issue. Following an investigation, complainant did not request a

hearing before an EEOC Administrative Judge, and the agency then issued

a FAD finding no discrimination.

CONTENTIONS ON APPEAL

Complainant contends that he has been denied training and this is

blocking his upward mobility. The agency replies that the FAD should

be affirmed.

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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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.").

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). He

must generally 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 Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Complainant contended that based on his qualifications, he should have

been selected for promotion. The selecting official explained that

complainant was not chosen because he lacked experience in the area

of sterilization. The two selectees had this experience and thus were

chosen. Complainant did not contest that he lacked this experience, but

averred it was only a small portion of the job. Affidavit B-1, page 15.

The selecting official, however, stated that the lead position was a

quasi supervisor job, and actually served as the top person on duty on

the second and third shifts, and weekends. He explained that this job

required knowledge of sterile preparation. Affidavit B-2, pages 10-11.

A statement by one of the panel members who scored the applications

corroborated this account. She was a supervisor for Distribution, Medical

Supply, and stated that the position was primarily in the preparation side

of the house, where equipment is sterilized, and lower graded technicians

would look to the lead for guidance. Affidavit B-3, pages 6-8.

Complainant generally contended that he was not given training which

would promote his upward mobility. The above panel member, however,

stated that as a supervisor and trainer, she encouraged him to get on

the job training in the sterilization area, but he would not do so.

Affidavit B-3, pages 9-10.

Complainant has not shown that the agency's explanation for not selecting

him was pretext to mask discrimination and reprisal, nor otherwise

proven discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the FAD

that complainant was not subjected to discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 9-18 (November 9, 1999). 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 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 (S0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 27, 2009

__________________

Date

2

0120091912

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091912