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

Equal Employment Opportunity Commission

Feb 7, 2013

0120111766 (E.E.O.C. Feb. 7, 2013)

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. 0120111766

Agency Nos. 200J-0506-2009100981; 200P-0506-2009103682

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
December 21, 2010 final Agency decision (FAD) concerning his equal employment
opportunity (EEO) complaints 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Human
Resource Officer at the Agency’s Healthcare System in Ann Arbor, Michigan. In April 2008,
Complainant applied for a Human Resources Officer position under Merit Promotion
Announcement No. 08-131. Complainant was found qualified and interviewed by a panel.
The announcement was subsequently cancelled and re-announced under Vacancy
Announcement No. 08-253. Complainant was not re-interviewed, but was still considered for
the position. In December 2008, the selectee was selected and became Complainant’s first-
level supervisor.

On March 12, 2009, Complainant filed a formal complaint (Agency No. 200J-0506-
2009100981) alleging that the Agency discriminated against him on the bases of disability
when:

0120111766

2
1. On December 17, 2008, he learned he was not selected for the position of Human
Resources Officer.

On May 19, 2009, Complainant requested a fitness for duty exam based on his struggles
performing his work. Complainant was given a fitness for duty exam and, on June 8, 2009,
the results of the exam concluded that Complainant could not function effectively in his current
position and that his condition would abate only if he were placed in a new work setting with
new supervisors. The Acting Director (AD) met with Complainant and discussed other
opportunities for Complainant. AD was unsuccessful in finding a vacant position for
Complainant. As a result, Complainant applied for disability retirement. Complainant began
using sick leave while his application for disability retirement was pending with the Office of
Personnel Management.

On June 24, 2009, AD issued Complainant a Notice of Proposed Removal. The Notice
informed Complainant that the fitness for duty exam recommended that he not be returned to
his position and he had until July 9, 2009, to apply for disability retirement. Additionally, the
Notice informed Complainant that any leave he had taken since June 8, 2009, would be
credited as Administrative/Approved Absence (AA) time, and he would need to request all
future time off as annual, sick, or leave without pay (LWOP). Complainant then requested AA
time until a decision was reached by the Office of Personnel Management regarding his
disability retirement application. AD informed Complainant that they would revisit the matter
when he ran out of leave.

While Complainant was out on extended leave and his disability retirement application was
pending, Agency officials asked Complainant to assist them on some EEO and similar matters.
Complainant was placed back on duty to assist with these matters. Complainant alleged that
this went on through October 2009. Additionally, in July 2009, the facility switched to a new
pay system. As a result of this change and confusion related to his leave, Complainant
received less than he expected in his paycheck for Pay Period 14. Complainant alerted
management and the matter was corrected by the next pay period.

On October 14, 2009, Complainant filed a second formal complaint (Agency No. 200P-0506-
2009103682) alleging that the Agency discriminated against and subjected him to a hostile
work environment in reprisal for prior protected EEO activity when:

2. From June 8, 2009, to September 30, 2009, he was not afforded the opportunity to
use Administrative Absence (AA) leave;

3. During Pay Period 14 (July 5 - 18, 2009), he did not receive a full salary check
because corrected timecards were not submitted to payroll;

4. On June 26, 2009, Complainant was issued a Proposed Removal letter even after he
had filed for disability retirement on June 19, 2009;

0120111766

3
5. In June 2009, the Chief of Human Resources Management Service (S1) tapped
Complainant on the forearm and stated, “Your freaking EEO complaint is causing
me a lot of work. You should see the laundry list of shit the Office of Resolution
Management is asking for.”

6. While on extended sick leave, Complainant received multiple calls and email
messages from management requiring his services in facilitating EEO complaints
filed by employees; and

7. Management ignored Complainant’s requests for temporary accommodation
(reassignment to another position).

At the conclusion of the investigations, Complainant was provided with copies of the reports of
investigation (ROI and ROI2) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a FAD. The Agency consolidated the two
complaints and issued a FAD pursuant to 29 C.F.R. § 1614.110(b) on December 21, 2010.

In the FAD, the Agency initially assumed arguendo that Complainant had established a prima
facie case of discrimination and reprisal and determined that management had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), S2 stated
that Complainant was not the ideal candidate for the position because he had been presiding
over a department that had not been performing well. Further, he did not demonstrate
management skills or articulate a vision that convinced S2 that he was right for the top
leadership position in the office. S2 requested that the position be re-posted after only a few
applicants qualified under the initial announcement. Candidates who applied under the original
posting were not re-interviewed, but were still considered for the position. S2 ultimately chose
the selectee because S2 was convinced that the selectee’s philosophy and vision equipped him
to be able to lead the transformation effort and fix the department.

Regarding claims (2) – (4) and (7), the Acting Director (AD) affirmed that Complainant
requested he be allowed to take a fitness for duty exam and the exam results concluded that he
could no longer perform his duties. After meeting with Complainant, they both concluded that
there were no available positions for which he was qualified and that he could perform within
his restrictions and Complainant would apply for disability retirement. AD issued
Complainant a proposed removal letter to confirm that he was found unfit for duty and that he
needed to apply for disability retirement within a certain amount of time. Unbeknownst to
AD, Complainant had already applied for disability retirement at the time the Notice was
issued. AD spoke with Complainant shortly thereafter, apologized for sending the Notice, and
explained that she was unaware that Complainant had already filed his application.

As to his leave, Complainant had taken sick leave from June 8, 2009 through June 24, 2009,
and the proposed removal letter informed him that the leave would be replaced with AA leave.
The letter further informed Complainant that after the period of AA and until his disability
retirement was approved he would be required to take annual or sick leave or LWOP. When
0120111766

4
Complainant requested AA, he still had leave left so AD believed that his request for AA
would be considered once he ran out of leave. Complainant never informed her that he ran out
of leave, so she never had the opportunity to make a decision on Complainant’s request.

As to Complainant’s paycheck in July 2009, S1 affirmed that the facility was in the process of
switching to a new pay system. Leave was charged differently in the new system than the old
system. Additionally, there was confusion over what type of leave Complainant was using
during this period. As a result, there was an error in Complainant’s paycheck which was
corrected once the leave issues and the new pay system issues were resolved.

As to the comment alleged in claim (5), S1 denied making the comment. Further, AD
affirmed that she had many conversations during this time period and Complainant never
mentioned the comment to her. The Agency determined that there was no corroborating
evidence that the comment was made.

The Agency concluded that Complainant had presented no evidence that management’s reasons
for its actions were pretextual. Further, Complainant failed to show that the alleged incidents
were sufficiently severe or pervasive to establish a hostile work environment. As a result, the
Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile
work environment as alleged. Complainant submitted no arguments or contentions on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she 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 U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 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., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Commission finds that even assuming arguendo that Complainant
established a prima facie case of disability discrimination and reprisal, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, in regard to claim (1),
Complainant’s second-level supervisor (S2) was the selecting official for the position. S2
affirmed that the position was initially posted and interviews were conducted, but the panel
0120111766

5
decided to re-advertise the position to seek additional candidates. ROI1, at 78. S2 noted that
he was seeking a candidate who could lead a department that had been viewed as broken and
dysfunctional and who was committed to transformational change. Id. at 80. Complainant
was considered qualified and interviewed for the position; however, he did not convince S2
that he was the transformational leader S2 was looking for. Id. at 81. Complainant had been
second-in-charge of a department that was viewed by many as dysfunctional and S2 had
received many complaints regarding a wide variety of HR activities. Id. By contrast, the
selectee demonstrated through his interview responses and through his background and
leadership experience that he could come in and make the kind of necessary changes to
improve a lot of the existing process problems. Id. As a result, S2 chose the selectee.

Regarding claim (2), AD affirmed that Complainant was afraid that he would run out of leave
before he would receive a decision on his disability retirement application and asked her if she
would consider granting him LWOP or AA. ROI2, Ex. B-2, at 8. Complainant had available
leave at the time of the request and AD told him that they would revisit the matter if and when
he ran out of leave. Id. AD asserted that she was never informed that Complainant ran out of
leave; therefore, she never had the opportunity to address the matter again. Id. Nonetheless,
S1 believed that denying the AA request would have been correct as Complainant’s
circumstance would not have been appropriate for AA leave. ROI2, Ex. B-3, at 8-9.

In regard to claims (3) and (6), AD stated that while Complainant was awaiting a decision on
his disability retirement and in an extended leave status, he was asked to come back to provide
assistance on a few EEO cases and other matters at the facility. ROI2, Ex. B-2, at 10-11. The
Agency placed him in on-duty status for the instances he assisted them in these matters.
Additionally, around July 2009, the Agency transitioned to a new payroll system. ROI2, Ex.
B-4, at 13-15. A payroll technician made an error in inputting Complainant’s time and leave
resulting in Complainant receiving less than he should have. AD maintained that once the
error was discovered, it was corrected the following pay period.

As to claim (4), S2 confirmed that management issued Complainant the Notice of Proposed
Removal after the fitness for duty exam concluded that he could not perform his duties and he
could not be reassigned. ROI2, Ex. B-3, at 13. The Notice was prepared after consultation
with the Human Resources Department and informed Complainant that the removal would be
held in abeyance if he provided evidence that he had applied for disability retirement. Id.
Complainant had already applied for disability retirement at the time the Notice was sent and
AD apologized to Complainant explaining that two items must have crossed in the mail.
ROI2, Ex. B-2, at 15. Nonetheless, AD stated the purpose of the Notice was to inform
Complainant that he had been found unfit for duty and that he had a certain amount of time to
file for disability retirement or the Agency would have to proceed with the proposed removal
action. Id. at 17. Since Complainant had already filed for disability retirement, the Notice
became moot. Id. at 18.

Finally, regarding claim (5), S1 denied making the comment and maintained that he would not
have approached to Complainant to retrieve documents related to his complaint. ROI2, at Ex.
0120111766

6
B-4, at 21-22. There is no corroborating record evidence that S1 made the comment and both
AD and S2 affirmed that Complainant never reported the incident to them.

Complainant did not request a hearing. Consequently, the Commission does not have the
benefit of an Administrative Judge’s credibility determinations after a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. At all times, the ultimate burden remains
with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory and
retaliatory animus. Complainant has failed to carry this burden.

Additionally, to the extent that Complainant alleged that he was subjected to a hostile work
environment, the Commission finds that under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must
fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). Specifically, a finding of a hostile work environment is precluded by
the Commission’s determination above that Complainant failed to establish that any of the
actions taken by the Agency were motivated by discriminatory or retaliatory animus. See
Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently,
the Commission finds that the Agency properly found that Complainant failed to prove that
Agency management subjected him to unlawful discrimination or harassment on the alleged
bases.

Denial of Reasonable Accommodation

Finally, to the extent that Complainant alleges in claim (7) that the Agency failed to reasonably
accommodate him, the Commission finds the preponderance of the evidence in the record
supports the Agency’s reasons for its actions. Assuming, arguendo, that Complainant is an
individual with a disability, the record does not support Complainant’s claim that he was
wrongfully denied an accommodation in the form of reassignment. The record reveals that
Complainant requested a fitness for duty exam. That exam concluded that he could not
perform the essential functions of his position. Complainant and AD met to determine whether
there was a vacant position into which he could be reassigned. AD was unsuccessful in
finding a vacancy and Complainant decided to file for disability retirement. While
Complainant contends that there were vacant positions at the time, he failed to identify a vacant
position for which he was qualified and there is no evidence of one in the record. Complainant
has an evidentiary burden to establish that it is more likely than not that there were vacancies
during the relevant time period into which he could have been reassigned. See Hampton v.
U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). Accordingly, the
Commission finds that Complainant has not established that he was denied reasonable
accommodation in violation of the Rehabilitation Act.

0120111766

7

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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 (Nov. 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.
0120111766

8
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
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

February 7, 2013
Date