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

Equal Employment Opportunity Commission

Feb 20, 2015

0120133102 (E.E.O.C. Feb. 20, 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. 0120133102

Agency No. 200H-0646-2012104101

DECISION
On August 5, 2013, Complainant filed an appeal from the Agency’s July 12, 2013 final
decision concerning her 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. 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 decision.

BACKGROUND
Complainant worked as an Ancillary Testing Coordinator at the Agency’s healthcare complex
in Pittsburgh, Pennsylvania. On September 13, 2012, Complainant filed an EEO complaint
alleging that the Chief Medical Technologist, her immediate supervisor (S1) had discriminated
against her on the bases of disability and age (59) by suspending her computer privileges
between July 27 and August 6, 2012. At the conclusion of the ensuing investigation, the
Agency provided Complainant with a copy of the investigative report (IR) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ). On April 26, 2013,
Complainant requested a final agency decision without a hearing. In accordance with
Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

The record includes a memorandum dated July 26, 2012, that had been prepared jointly by the
Privacy & Freedom-of-Information-Act Officer (PO) and the Information Security Officer
(ISO). The memorandum stated that Complainant had allowed two other employees to enter
patient data using her unique personal identifier in violation of established security protocols,
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and that the PO had ordered that the computer access privileges of Complainant and the other
two employees be suspended until the PO and the ISO had completed their investigation of the
matter. IR 171, 202-04. S1, the PO, and the ISO all averred that Complainant’s action had
resulted in the integrity of its patient records system being compromised. IR 163-66, 185-88,
193-96. Each of these officials also testified that they had no knowledge of Complainant’s age
or disability. IR 162, 184, 191. Complainant’s privileges were restored on August 6, 2012,
after Complainant had reviewed and signed a copy of the Agency’s national rules of behavior.
IR 113, 122, 215-22.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory or retaliatory motivation on the part of the officials responsible
for those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248,
259 (1981). Therefore, in order to prevail on her disparate treatment claim, Complainant
would have to prove, by a preponderance of the evidence, that S1, the PO, and the ISO were
motivated by unlawful considerations of her age and disability when the decision was made to
suspend her computer privileges. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 143 (2000). Such evidence can take the form of discriminatory statements or past
personal treatment, comparative or statistical data, unequal application of Agency policy, or
deviations from standard procedures without explanation or justification. See Hovey v.
Department of Housing & Urban Development

, EEOC Appeal No. 01973965, (Aug. 31,
2000).
S1, the PO, and the ISO all testified in their affidavits that they had no knowledge of
Complainant’s age or disability when the security incident occurred, that Complainant had
violated the Agency’s computer security protocols by allowing two other employees to use her
unique personal identifier without authorization, that the PO made the decision to suspend the
computer privileges of Complainant and the other two employees involved in the security
breach, and that Complainant’s privileges had been restored once she signed the memorandum
outlining the Agency’s national rules of behavior. Their testimony had been corroborated by
contemporaneously prepared emails and memoranda. While Complainant expressed her belief
that the suspension of her computer privileges constituted discrimination, she has not presented
any sworn statements from other witnesses or documents which contradict the explanation
provided by S1, the PO, and the ISO or which call their veracity into question. The
Commission has long held that unsupported assertions are not sufficient evidence of illegal
motive. Porter v. Department of the Navy

, EEOC Petition No. 03800087 (January 14, 1981).
We therefore agree with the Agency that Complainant has not sustained her burden of proof on
this discrimination claim.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.
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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.

0120133102

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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

Date
February 20, 2015