Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 4, 2014

0120121811 (E.E.O.C. Apr. 4, 2014)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120121811

Hearing No. 471-2011-00056X

Agency No. 200J05532010103828

DECISION
On February 21, 2012, Complainant filed an appeal from the Agency’s January 25, 2012 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Sergeant at
the John D. Dingle Veterans Affairs Medical Center, located in Detroit, Michigan. On
September 15, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), disability
(ankle injury),1

1 We assume for the purposes of this decision that Complainant is an individual with a
disability, in accordance with the Rehabilitation Act.
age (50), and in reprisal for prior protected EEO activity when: (1) effective
June 16, 2010, Complainant’s shift was changed to the afternoon; (2) on or about August 17,
2010, Complainant became aware that he was qualified, but not selected for the position of
Detective, GS-083-8; (3) on or about August 18, 2010, Complainant became aware that he was
qualified, but not selected for the position of Lead Officer (Training), GS-083-8; (4) he was
subjected to harassment which included (a) his shift changed to the afternoon on June 16,
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2010; (b) on June 8, 2010, the Chief of Police (SO) stated: “I make shift decisions to benefit
us;” (c) on or about August 17, 2010, he was not selected for the position of Detective; and (d)
on or about August 18, 2010, he was not selected for the position of Lead Officer (Training).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

FACTUAL BACKGROUND
Claim 1 – Rotation of Shift

Complainant asserts that every six to ten weeks shifts are supposed to be rotated pursuant to
Agency regulations. He further asserts that he was rotated to the midnight shift and remained
on that shift for over a year while two younger, African-American officers (C1 and C2) were
assigned to the day shift for an extensive period. Complainant also asserts that SO told him, "I
kept you on that shift to benefit us." Complainant asserts that he asked SO to explain what this
meant, but SO allegedly evaded the question and would not give him an answer. Complainant
further alleges that as a result of working the midnight shift, he was kept out of mainstream
operations which affected his career promotion potential.

SO denies making any employment decisions on the basis of Complainant’s race, sex, age,
disability and/or prior EEO activities. He further states that the Agency has a policy that
officers are to be rotated every two or three months, and he tries to follow the policy unless
other factors are involved. SO further notes that at some point, officers were not rotated as
often due to a shortage in personnel or resources. SO states that he would have changed
Complainant’s schedule sooner had he known it caused a problem for Complainant. S1 further
notes that Complainant came to him previously asking to change his schedule so that he can go
to school, and he called the shift supervisor and told him to change Complainant's schedule.
SO denied making the statement that he makes shift changes to "benefit us." Complainant’s
first-line supervisor also explains that he kept Complainant on the midnight shift because
Complainant told him that he did not like working the afternoon shift and volunteered to work
the midnight shift.

Claims 2 & 3 – Non-Selections

Complainant applied and was found qualified for two vacancies in August 2010. In both cases
he was referred for an interview but was not selected. The Agency convened a three-member
rating panel to interview the qualified applicants for each position. The panel included the
Assistant Chief of Police (P1) and two Police Lieutenants (P2) and (P3).

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Complainant asserts that the interview questions for both vacancies were generic and did not
sufficiently ask questions related to the position at issue. Complainant also asserts that after
learning that he was not selected for either vacancy, he attempted to obtain an explanation from
SO who acted evasive and did not provide a clear explanation for the selection decision.
Complainant believes he has more experience than both individuals who were selected for the
vacancies. Specifically, Complainant asserts that he has 14 years of experience on the job,
more seniority than either selectee, a college degree and had recently graduated from
“detective school” at Oakland Community College.

SO explains that the rating panel obtained the interview questions from the Performance Based
Interviewing (PBI) website, which is commonly used throughout the Agency. The rating panel
members and a Human Resources employee (HR) also testified that using the PBI website is a
common practice among hiring officials. SO stated that he concurred with the panel members’
recommendations and did not get involved in the process prior to the final stage where he was
asked to make the selection.

P1 explained that the two candidates who were interviewed for the Detective position were
asked the same questions which were obtained from the PBI website. Complainant was ranked
second among the two candidates interviewed. P1 also asserts that the selectee (SE1) answered
all of the interview questions well, while Complainant did not answer some of the questions.
In addition, P1 explains that SE1 had experience with various investigations, took investigative
classes, had experience in conducting background checks, and had conducted security surveys
which made him the best qualified candidate. The score and rating sheets revealed that the
panel members unanimously recommended SE1 for the position.

In addition, P1 states that the panel members followed the same procedures for the Lead
Officer position and each candidate were asked the same questions. P1 explains that a large
part of the Lead Officer position included the task of training police officers. In addition, P1
states that although Complainant was qualified, the selectee (SE2) had significant training
experience that Complainant did not possess. Specifically, SE2 had previous experience as a
firearms instructor and a tactical firearms instructor. Complainant was ranked third among the
four candidates interviewed. The score and rating sheets revealed that the panel members
unanimously recommended SE2 for the position, and that SO concurred with the
recommendations. All panel members assert that Complainant's protected classes were not
factors in the selection decisions.2

Claim 4 - Harassment

Complainant alleged that SO subjected him to disparaging comments when he questioned SO
regarding the shift rotations and was told "I make rotations to benefit us." Complainant also
states that after he filed his previous EEO complaints, management became angry and stopped
speaking to him. He further contends that he reported the harassment to SO but that SO did

2 P2 and P3 corroborated P1 and SO’s testimony.
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not have a “real answer” and became evasive. In addition, Complainant asserts that the non-
selections create a hostile work environment because he is forced to treat two former co-
workers (SE1 and SE2), who have less seniority, as superiors which makes him “very angry.”
Complainant also states that “because they're angry at me, I'm angry at them, I don't speak to
them. . . . that creates kind of a hostile situation where no one's talking to each other.”

All of the relevant management officials deny Complainant’s assertions and state that they are
not aware of any harassment. Specifically, the management officials deny ever being informed
of any such harassment or witnessing any harassment.

ANALYSIS AND FINDINGS
The Agency concluded that it met its burden to articulate a legitimate, non-
discriminatory/retaliatory reason for its employment decisions which Complainant failed to
establish was pretext or otherwise motivated by discriminatory or retaliatory animus.
Specifically, the record shows that Complainant’s supervisor kept him on the midnight shift
because Complainant had volunteered to work this shift and did not desire the afternoon shift.
In addition, according to P1, P2 and P3, Complainant did not perform well in his job
interviews, and his investigation and training experience were not as extensive as the selectees’
experience. The Agency also concluded that beyond Complainant’s uncorroborated testimony,
the record is devoid of evidence to support his allegations of harassment.

Upon review of the record, we agree with the Agency’s findings and conclusions. We note
that on appeal Complainant points to documentary evidence in the form of an April 24, 2001
letter from SO to Complainant to support his contention that SO lied about not being aware of
Complainant’s disability during the relevant time-frame (i.e., summer of 2010). It appears
from the 2001 letter that SO was aware that Complainant had a “service connected injury to his
right ankle” that caused Complainant to limp at times. However, such knowledge in 2001
does not necessarily equate to the conclusion that SO is aware of or believes (in 2010) that
Complainant has a disability. Accordingly, the existence of the 2001 letter, by itself, does not
automatically result in a finding that SO’s testimony is not credible. Moreover, even if we find
that the record supports the conclusion that SO’s testimony lacked credibility, such
determination is not dispositive herein, since the Agency has concluded that Complainant
established a prima facie case of discrimination and retaliation. We also note that the record is
devoid of evidence in support of a finding of pretext or discriminatory/retaliatory animus on
the part of any responsible management official. In addition, the evidence does not support a
finding that Complainant objectively experienced a sufficiently severe or pervasive hostile
work environment. Accordingly, we find insufficient evidence herein to alter the Agency’s
finding of no discrimination. We AFFIRM the Agency’s final decision.

0120121811

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 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

(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

(Z0610)
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
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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

Date
April 4, 2014