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

Equal Employment Opportunity Commission

Jan 30, 2013

0120121302 (E.E.O.C. Jan. 30, 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. 0120121302

Hearing No. 410-2010-00418X

Agency No. 2001-0508-2009102397

DECISION

On January 14, 2012, Complainant filed an appeal from the Agency’s January 17, 2012 final
order concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a).1

For the following reasons, the Commission AFFIRMS the
Agency’s final order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as the Residency
Director and Chief of Podiatry at the Agency’s work facility in Decatur, Georgia. On April
17, 2009, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against and harassed him on the basis of his age (62) when:

1. In August 2006, he was hired as a physician without a retention bonus.

2. Since October 2006, and as recently as March 17, 2009, the Chief of the Medical
Specialty Service ignored approximately five or six of his requests for a retention
bonus.

3. On March 17, 2009, his request for a retention bonus was denied.

1 Although Complainant filed the instant appeal before receiving the final order, we consider
the appeal timely filed.
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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, and the AJ held a hearing
on September 7, 2011, and issued a decision on January 4, 2012.

The AJ found that no age discrimination occurred. AJ’s Decision at 18. The AJ noted that
Complainant had been transferred from an Agency hospital in Tucson after working there for
twenty years where he had been Chief of Podiatry and Residency. Id. at 5. Complainant
acknowledged that when he was hired for the Georgia position, he did not seek a recruitment
bonus and was not guaranteed a retention bonus. Id. Shortly after he was hired, Complainant
learned that a subordinate employee hired prior to him received a retention bonus. Id. at 6.
This comparator is a podiatrist in his 30’s who had recently completed his residency. Id.
Complainant subsequently recommended that this individual no longer receive a retention
bonus, and the bonus was terminated. Id. at 7. The AJ found no evidence that a podiatrist at
the facility received a bonus between October 2006 and April 2009. Id. According to
Complainant, he deserved a retention bonus because he is experienced, started a research
program and brought the podiatry program from a state of disarray to under control. Id.
Complainant stated that he repeatedly requested bonuses from October 2006 – March 2009, but
his requests were denied. Id. at 8.

The AJ noted that the Agency explained that the comparison was hired under a different hiring
authority and during a time that podiatrists were in short supply. Id. Further, the Agency
stated that Complainant did not meet the Agency requirements for a retention bonus. Id. The
Agency stated that the comparator was hired in December 2003, when the Agency was having
difficulty recruiting and retaining podiatrists. Id. at 9. The Agency stated that he was awarded
a retention bonus when he considered leaving federal service. Id. According to the Agency,
at the time of Complainant’s hiring in 2006, it was no longer having a problem recruiting
podiatrists, and there were no vacant positions. Id.

The Agency stated that retention bonuses are ordinarily reserved for employees who have high
or unique qualifications in positions that are likely difficult to fill; whose services are essential
to a special Agency need; or are likely to leave federal service without an incentive. Id. at 10.
According to the Chief of Staff, Complainant was a very competent podiatrist, but he did not
possess any unique skills that would justify a bonus. Id. The AJ noted that Complainant did
not have another job offer and never threatened to leave the facility. Id. The AJ found that
the Agency articulated a legitimate, nondiscriminatory reason for its actions and that
Complainant failed to establish that the reason was pretextual. Id. at 15.

The AJ also found that Complainant failed to prove harassment. Id. at 18. The AJ referenced
the Agency’s aforementioned explanation as grounds for finding that the denials of a retention
bonus were not based on Complainant’s age. Id. at 17. The AJ also noted that Complainant
acknowledged that not receiving a bonus did not interfere with his work. Id.

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The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant challenges the fairness of the hearing, stating that he was not allowed to question
management’s assertions. Complainant claims that the Agency has not proved it was difficult
to hire podiatrists when the comparator was hired.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS

Upon review of the record, we find that the AJ’s factual findings are supported by substantial
evidence, and we find no reason not to defer to her credibility determinations. Complainant
has not established that the treatment he received was attributable to his age. The record
indicates that Complainant did not meet the criteria for receiving a retention bonus.
Complainant, unlike the comparator, was hired at a time that the Georgia facility was not
having difficulty recruiting and retaining podiatrists. Complainant also did not threaten to
leave federal service if he did not receive a retention bonus. Further, we find no evidence to
support Complainant’s contention that he was in any meaningful way prevented from
challenging the testimony of the Agency’s witnesses. We discern no basis to disturb the AJ’s
decision.

CONCLUSION

The Agency’s determination in its final order that no age discrimination occurred is
AFFIRMED.

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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.

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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

January 30, 2013
Date