Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 17, 2015

01-2013-1133-0500 (E.E.O.C. Jul. 17, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120131133

Hearing No. 450-2012-00073X

Agency No. 2003-0674-2011101727

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s final action concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of 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. For the following
reasons, the Commission AFFIRMS the Agency’s final action.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency’s Central Texas Veterans Health Care System facility in Temple,
Texas. Complainant applied for a Physician Assistant (Orthopedics) position advertised under
Vacancy Announcement Number T38-2010-99. The announcement noted that “[j]ob offers are
contingent on passing a physical (if required), satisfactory completion and positive results of
the following: the Healthcare Integrity and Protection Data Bank, Exclusionary
Individuals/Entities, Background Investigation and completion and adjudication of fingerprint
investigation.” Complainant was interviewed and subsequently recommended for hire by the
Chief of the Orthopedics Section (Chief 1). Complainant received an email congratulating him
on his selection and requesting that he complete an OF-306 (Declaration for Federal
Employment) and a form for a background investigation.

Complainant completed the Form OF-306, and indicated on it that he had been arrested for
carrying a concealed weapon in an airport, and also that he had been terminated from a recent
employment, or resigned after being notified of termination. Complainant entered a plea of
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carrying a handgun, and received Probation Before Judgment and unsupervised probation for
one year as a result. Complainant attached a letter from the attorney who represented him in
the criminal weapons charge to the Form OF-306. The Chief of the Surgical Service (Chief 2)
recommended to the Agency’s Professional Standards Board (PSB) that Complainant be
appointed to the position. The PSB grants credentialing and privileging actions for all medical
personnel at the Agency’s facility. The PSB met on November 16, 2010, and after reviewing
information regarding Complainant's arrest, recommended disapproval of Complainant's
appointment to the medical staff. That same day, the Medical Staff Executive Council
(MSEC) concurred with the PSB’s recommendation. The Acting Director (AD) reviewed
Complainant’s arrest documentation and ultimately decided not to hire Complainant. On
November 29, 2010, the Human Resources Chief issued Complainant a letter rescinding the
offer of employment.

On March 14, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of disability and age (60) when on November 29, 2010,
he was notified his employment offer as Physician Assistant (Orthopedic), Surgical Service,
Vacancy Announcement Number T38-2010-99, was rescinded.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
and the AJ held a hearing on June 14, 2012, and issued a decision on November 14, 2012.

In her decision, the AJ initially assumed arguendo that Complainant established a prima facie
case of age and disability discrimination and determined that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The Agency presented evidence that Complainant,
based on his initial application and his meeting with Chief 1, was tentatively offered the
position, conditional on his completion of the background investigation and credentialing
process. The Agency presented evidence that during the credentialing meeting, the PSB was
presented with documents that showed that Complainant was arrested for carrying into an
airport a loaded and cocked weapon in his carry-on backpack. The members of the PSB stated
that they were concerned by Complainant’s explanation that he did not know where he had
placed a loaded weapon, and the fact that he was ultimately carrying that weapon into an
airport. The members of the PSB stated that they were concerned that this lack of knowledge
showed poor judgment, and given the fact that they have a zero tolerance for firearms,
believed that Complainant should not be hired.

The AJ noted that this was not a case where Complainant was not selected in favor of an
individual outside of his protected groups; rather, Complainant was offered a position
conditioned on successful completion of his background investigation and credentialing
process. Complainant was initially hired, at a time when his age and his veterans’ preference
status were known. It was not until the Agency later received information regarding his arrest
and placement on probation, and the nature of that arrest, that members of the PSB made a
recommendation that he not be hired.
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In attempting to establish that the Agency’s reasons were pretextual, Complainant argued that
the Agency had hired individuals in the past with felony drug convictions. AD testified that
that they have hired individuals with drug convictions in Housekeeping positions as part of
their rehabilitation program; however, AD testified that she was not part of the hiring process
for those positions.

In addition, Complainant argued that he was perceived as having a mental illness because the
members of the PSB knew that he was a disabled veteran and believed he used poor judgment.
Further, Complainant argued that as people get older, they are sometimes perceived as less
likely to come to work and more likely to have health issues. Finally, Complainant claimed
that maybe his non-selection was an overreaction to the shooting incident at Ft. Hood. The AJ
did not find that the statements of the PSB members that they believed Complainant had used
poor judgment when he carried a loaded and cocked weapon into the airport indicated that they
believed that Complainant had a mental illness.

The AJ concluded that Complainant failed to demonstrate that the Agency’s reasons for
rescinding Complainant’s offer of employment were pretext for unlawful discrimination. As a
result, the AJ found that Complainant had not been subjected to discrimination as alleged.
When the Agency failed to issue a final order within 40 days of receipt of the AJ's decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R.
§ 1614.109(i). The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency did not hire him for a Physician Assistant
position because it perceived him as disabled in violation of the Rehabilitation Act.
Complainant offers an explanation for the airport handgun incident, and claims that AD, not
the PSB, decided that Complainant was unfit for the job. Further, Complainant alleges that
Agency officials knew he was disabled and that his mental illness caused him not to be hired.
Complainant argues that there was no reason to automatically exclude him because he was not
a felon and his charge had been dismissed; therefore, the reasons offered by the Agency for
not hiring him were not credible and a pretext for discrimination. Accordingly, Complainant
requests that the Commission reverse the final action.

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. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
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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

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDNGS
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). Complainant must initially 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).
In the instant case, the Commission finds that the AJ's determination that the Agency
articulated legitimate, non-discriminatory reasons for its actions is supported by substantial
evidence. Specifically, Complainant was given a tentative offer of employment contingent on
him passing a physical and satisfactorily completing with positive results the credentialing
process and background and fingerprint investigations. Hr’g Tr., at 21, 36. Complainant
submitted an OF-306, and indicated on it that he had been previously arrested. Id. at 94-95,
99. The PSB met to discuss Complainant’s suitability, and its members voted unanimously to
stop the credentialing process based on concerns about Complainant’s firearms violation and
arrest. Id. at 38. The MSEC concurred with the PSB’s recommendation and voted
unanimously to deny approval of Complainant’s appointment based on Complainant’s prior
arrest. Id. at 131. The recommendation was forwarded to AD who concurred with the
MSEC’s recommendation and decided not to hire Complainant because the circumstances of
Complainant’s arrest raised concerns that Complainant could not display “strong critical
thinking judgments that involved the safety of others.” Id

. at 67, 131
The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation was pretext for age or
disability based discrimination. The record and facts gleaned at the hearing fail to disclose any
evidence purporting to show the Agency's actions were pretext for discriminatory animus. As
a result, the Commission finds that Complainant was not subjected to discrimination as alleged.
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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 final Agency action because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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 tends 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
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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
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
July 17, 2015