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

Equal Employment Opportunity Commission

May 22, 2014

0120131143 (E.E.O.C. May. 22, 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. 0120131143

Hearing No. 531-2012-00155X

Agency No. 2004-0313-2011102542

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated December 12,
2012. For the following reasons, we AFFIRM the Agency’s final decision.

BACKGROUND
The record indicates that the Agency framed Complainant’s complaint, dated July 5, 2011, as
alleging discrimination based on race (African American), age (over 40), and disability
(bilateral knee, back, lung, shoulder) when: (1) between December 27, 2010, and February
23, 2011, he was temporarily detailed to the Fiscal Officer position, but was not financially
compensated; and (2) on March 23, 2011, he learned “by word of mouth” that someone had
been selected for the position of Fiscal Officer, GS-0501-12 (target GS-13), vacancy
announcement 11-C392-VBA-08, however, he had not received official or written notification
of nonselection. On September 28, 2011, the Agency dismissed claim (2) for failure to state a
claim pursuant to 29 C.F.R. § 1614.107(a)(1) since a selection had not been made. The
Agency accepted claim (1) for investigation.

After completion of the investigation of claim (1), Complainant requested a hearing but it was
denied by an EEOC Administrative Judge (AJ) due to his failure to comply with the discovery
requirements and failure to proceed in the complaint processing. The AJ remanded the case to
the Agency for the issuance of its final Agency decision. The Agency issued its final Agency
decision concluding that it asserted legitimate, nondiscriminatory reasons for its action
described in claim (1), which Complainant failed to rebut.

0120131143

2

ANALYSIS AND FINDINGS
Initially, upon review, we find that the Agency properly dismissed claim (2) for failure to state
a claim. In claim (2), Complainant claimed that he was not selected for the Fiscal Officer
position, GS-0501-12 (target GS-13), vacancy announcement 11-C392-VBA-08, of which he
applied on January 4, 2011. The Agency indicated that no selection was made at the time of
the formal complaint. On appeal, Complainant is not challenging this. Based on the
foregoing, we find that Complainant was not aggrieved concerning the alleged incident. See
Diaz v. Department of the Air Force

, EEOC Request No. 05931049 (April 21, 1994). Thus,
we find that the Agency’s decision dismissing claim (2) was proper pursuant to 29 C.F.R.
§1614.107(a)(1).
Turning to claim (1), we find that the AJ properly denied Complainant’s request for a hearing
for his failure to comply with the AJ’s orders, including the Agency’s discovery requests. 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 Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614

, at 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,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).
After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident in claim (1). At the relevant time period at issue, Complainant
was employed as a Records Management Officer, GS-11, at the Agency’s regional office in
Baltimore, Maryland. Complainant claimed that while he was detailed to the Acting Fiscal
Officer position, he was not compensated for that position. Complainant’s Acting Director
indicated that Complainant was asked to be the Acting Fiscal Officer as a temporary detail
assignment because he was the highest graded individual in the division. The Acting Director
stated, and Complainant acknowledged, that at the time of the detail assignment, there was no
discussion of compensation and no SF50 was generated for performing the additional duties.
The Acting Director indicated that after Complainant left the detail assignment due to his job
injury, another employee, a Financial Management Specialist, GS-10, was detailed into the
Acting Fiscal Officer position, and that employee, too, was not given an increase in pay for the
detail.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, we find that
Complainant failed to show that he was treated less favorably than a similarly situated
employee under similar circumstances. We do not address in this decision whether
Complainant is a qualified individual with a disability. Furthermore, we note that Complainant
0120131143

3
has not claimed that he was denied a reasonable accommodation. Based on the foregoing, we
find that Complainant failed to show that the Agency’s action in claim (1) was motivated by
discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination concerning claim (1) and
dismissing claim (2) is AFFIRMED.

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.
0120131143

4
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

Date
May 22, 2014