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

Equal Employment Opportunity Commission

Aug 22, 2014

0120131751 (E.E.O.C. Aug. 22, 2014)

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. 0120131751

Hearing No. 520-2012-00434X

Agency No. 200H-0523-2011104753

DECISION
On March 27, 2013, Complainant filed an appeal from the Agency’s March 19, 2013 final
order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). 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 a Lead Driver, GS-
6 in the transportation services division of the Agency’s Veterans Medical Center in Boston,
Massachusetts. On December 8, 2011, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of sex (male), age (68), and in reprisal for prior
protected EEO activity when:

1. On August 25, 2011, he was passed over for a temporary detail into a supervisory
position in favor of a female;

2. Effective October 4, 2011, his duty station was changed from the Jamaica Plain
campus to the West Roxbury campus; and

3. On October 13, 2011, he was not offered overtime as private contractors had been.
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On or about August 25, 2011, Complainant’s first-line supervisor (S1) had been detailed from
her supervisory position in the financial services division into an acting supervisory position in
the transportation services division. Investigative Report (IR) 128. The transportation chief,
who was Complainant’s second-line supervisor (S2) and was identified by Complainant as the
responsible management official, stated in his affidavit that he did not assume his then-current
post until six months after S1’s arrival. He averred that he was not involved in S1 getting the
detail assignment. IR 107. When Complainant was asked by the investigator why he believed
that the decision to detail S1 into the transportation services division was based on his age,
gender, or previous EEO activity, Complainant responded that S1 had been preselected, and
that no one was interviewed for the position. IR 83, 96.

An email dated September 9, 2011, indicates that S2 informed Complainant and four other
drivers, one of whom was female, that their duty stations needed to be changed to accurately
reflect the information in their time and leave statements. IR 136-37, 236. Complainant
averred that on October 4, 2011, S2 informed him that his duty station would be changed from
the Jamaica Plain campus of the Boston Medical Center to the West Roxbury campus. IR 81.
When asked what he thought the reason for the change was, Complainant averred that a female
budget analyst with whom S2 was having a relationship had been instrumental in engineering
his reassignment to another campus. IR 81-82. When asked why he believed his age and
gender were factors in that decision, Complainant replied that he was probably the oldest
gentleman working in that area. IR 82. S2 stated in his affidavit that the drivers’ duty stations
had to match with locations at which their time and leave records indicated that they started
and ended their workdays. IR 105-106. He also confirmed that he had first notified
Complainant about the change on September 9th

and that Complainant did not voice his
disagreement at the time. IR 105.
In his affidavit, Complainant asserted that S2 purposely did not offer him overtime on October
13, 2011. He maintained that it was the Agency’s practice to award overtime on the basis of
seniority and that if the first person to whom overtime was offered declined, the offer would
go to the next person on the seniority list. He averred that S2 failed to follow the seniority list
in awarding overtime on October 13th

. IR 82. S2 responded that on that date, the driver
whose shift ended at 3:30 PM unexpectedly went home sick at 1:30 PM, and that since no
other drivers were available to take his place, no overtime was awarded. IR 106-07.
Complainant was fifth on the seniority list; the driver who went home sick was first. IR 130-
34. Article 21 of the collective bargaining agreement to which Complainant was subject states
that overtime shall be distributed in a fair and equitable manner. IR 156.
At the conclusion of the ensuing 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; however, on January 7,
2013, the Agency moved for summary judgment. When Complainant did not respond, the AJ
assigned to the case granted the motion for summary judgment and issued a decision on March
1, 2013. 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. On
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appeal, Complainant challenges the AJ’s decision on its merits, but did not provide a
supporting statement or brief.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a summary judgment decision when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material" if it
has the potential to affect the outcome of the case. Abeijon v. Department of Homeland
Security, EEOC Appeal No. 0120080156 (August 8, 2012). The evidence of the non-moving
party must be believed at the summary judgment stage and all justifiable inferences must be
drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 255
(1986).
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). Generally, he must first 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. Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed when, as in this case, the Agency articulates
legitimate and nondiscriminatory reasons for its actions. 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.

, 530 U.S. 133, 143 (2000).
Construing the evidence in the light most favorable to Complainant, we find first that S1 was
detailed into the transportation services division approximately six months before S2 became
the transportation chief. Nothing in the record establishes S2’s involvement in the decision to
detail S1 into the supervisory position in transportation services. The only explanation
Complainant puts forth as to why he thinks S1’s detail was discriminatory is his unsupported
assertion that S1 had been preselected, presumably by S2. Even if this were the case, he
would still have to show that the preselection was based on an unlawful motivation, and this he
has not been able to do. See Visarraga v. Department of the Navy

, EEOC Appeal No.
01932058 (March 9, 1995) (Proof of preselection without more does not amount to proof of
discrimination). Next, we find that Complainant’s duty station was changed to West Roxbury
because that was where he started and ended his daily runs according to his time and leave
records. Finally, Complainant had not shown that he was entitled to overtime on October 13,
2011. Even if overtime had been distributed on that day, four other individuals would have
been offered overtime before Complainant. Overall, Complainant has not pointed to any
documents or sworn statements in the record which contradict the statements S2 made in his
affidavit. The Commission therefore finds that AJ’s findings and conclusions are fully
supported by the record.
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CONCLUSION
Based upon our review of the record and for the foregoing reasons, we find no reason to
disturb the AJ’s decision, and accordingly, we AFFIRM the Agency’s final order.

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
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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
August 22, 2014