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