Freddy K.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 25, 2018

0120162057 (E.E.O.C. Apr. 25, 2018)

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

Freddy K.,1
Complainant,

v.

Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120162057

Agency No. 2003-VI15-2015102643

DECISION

On June 2, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 26, 2016, final decision 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as the Physician/Chief of Staff, VM-0602-10, at the Agency’s Medical
Center in Poplar Bluff, Missouri. The facility was part of Veterans Integrated Service Network
(VISN) 15. On June 18, 2015, Complainant filed an EEO complaint in which he alleged that
senior management officials discriminated against him on the bases of national origin (Indian),
sex (male), religion (Hindu), and color (Brown) when, on April 22, 2015, his request for a salary
increase was denied. The alleged responsible management officials included: the former
Medical Center Director who retired on an unspecified date – his first-line supervisor (S1)
(female); the Chief Medical Officer for VISN-15 – his second-line supervisor (S2) (Indian, male,
Hindu, light brown); and the Network Director for VISN-15 – his third-line supervisor (S3)
(American, male, Roman Catholic, white).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant opted for a final decision from the Agency, and 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 him to discrimination as alleged.2

On March 11, 2014, in accordance with the recommendation of a Compensation Panel convened
by S1, S3 approved an increase in Complainant’s annual salary from $234,535 to $235,000. On
November 24, 2014, Complainant submitted a subsequent written request for a salary increase,
which would have been outside of the normally scheduled salary review process (mandated to be
at least every two years). The request was sent to S2 through S1 for recommendation. On
December 16, 2014, Complainant met with S1 to request that she convene a Compensation Panel
to consider his request. S2 subsequently asked Complainant to provide him with copies of his
performance appraisals and other relevant documents. On April 3, 2015, a new VA
Compensation Panel convened to consider Complainant’s request. The Panel recommended an
increase from $236,287 to $237,787, which amounted to a market-pay-based increase of $1,500.
On April 6, 2015, S3 approved the Panel’s recommendation.

S2 averred that the Panel focused on the time period from March 2014, when Complainant
received his last increase, through March 2015. For that period, Complainant received a
performance evaluation by S1 of “fully successful,” not “outstanding” or “excellent.” S2 averred
that there were 25 level three facilities throughout the country, and at fourteen of those facilities,
the Chiefs of Staff were making less than Complainant. S2 also averred that the Panel made a
recommendation for an increase of $1,500 of Complainant’s market pay based on information
provided to the Panel by S1. He averred that market pay adjustments were not automatic, and
that an employee had to prove that he was more marketable than he was two years earlier.

One of the Compensation Panel members testified that in arriving at their recommendation the
panel considered a number of factors. First, they compared Complainant’s current salary to the
salaries of other Chiefs of Staff within VISN 15. The also wanted to make sure that they were
maintaining some internal equity within their own division in terms of the complexities of the
responsibilities of the various Chiefs of Staff. In addition, they were looking at the salaries of
Chiefs of Staff throughout the entire system. Overall, they wanted to make sure that

2 Complainant also alleged that S1 had discriminated against him on the above-listed bases
when, on April 6, 2015, she issued him an annual performance rating of “fully successful.” The
Agency initially dismissed this claim on the grounds that he failed to bring the matter to the
attention of an EEO counselor within the prescribed regulatory time frame of 45 days. In its
FAD, the Agency found that the claim should more properly have been dismissed under 29
C.F.R. § 1614.107(a)(2), for failure to raise the matter with the EEO counselor. Complainant
raised no challenge to this dismissal on appeal; therefore, the Commission will not further
address this claim in this decision.
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Complainant’s compensation was comparable to what other Chiefs of Staff in similarly complex
facilities were receiving. S3 averred that he normally accepted a Panel’s recommendation and in
Complainant’s case, he accepted the Panel’s recommended market-pay increase for Complainant
based on the fact that Complainant ran an integrated medicine clinic.

The Agency assumed that Complainant had established a prima facie case on all bases and found
that it had articulated legitimate, nondiscriminatory reasons for denying the salary increase
beyond the $1,500 market pay awarded. The Agency found that Complainant had not shown
those reasons to be pretext for discrimination. It concluded that Complainant had not established
that he had been discriminated against. This appeal followed.

ANALYSIS AND FINDINGS

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. (Aug. 5, 2015) (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”).

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). As a first step, he must generally 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978).

The prima facie inquiry may be dispensed with in this case, however, since the Agency
articulated legitimate, nondiscriminatory reasons for authorizing a salary increase for
Complainant, namely that S3 followed the recommendation of a Compensation Panel that took
into consideration various factors relevant to the determination of Complainant’s market pay,
including the salaries of other Chiefs of Staff both within and outside of VISN-15. See U.S.
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).

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 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be
demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact
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finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service,
EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC
Request No. 0520080211 (May 30, 2008).

When asked by the EEO investigator why he believed that the decision to award him only a
$1,500 salary increase was based on unlawful considerations of his national origin, sex, religion,
and color, Complainant averred that: on an unspecified date in 2015, S2 (as noted above, also an
Indian) told him that he would never meet with an Indian family and would divorce his wife if
she ever spoke with an Indian doctor who worked for him; that S1 knew that she could refuse to
recommend Complainant for a salary increase due to the fact that she believed that an Indian
person would not complain; and that in the VA system, white doctors routinely received salary
increases, but the same thing was not done for doctors of Indian origin. IR 152-159, 174.

We find that Complainant has not presented affidavits, declarations, or unsworn statements from
witnesses other than himself, nor documents that tend to corroborate any of these assertions.
Indeed, he has not presented any evidence that contradicts the explanations provided by S2, S3,
or the two Compensation Panel members, or which calls their veracity into question with regard
to the reasons for a larger salary increase denial. Additionally, in his affidavit, S2 specifically
and strongly denied making the comments attributed to him by Complainant. We note that as
Complainant chose not to request a hearing, the Commission does not have the benefit of
additional testimony from witnesses or an Administrative Judge’s credibility determinations after
a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the
evidence presented.

As noted above, S1 retired from the Agency and consequently did not provide an affidavit for the
record. On appeal, Complainant appears to be contending that the EEO investigator’s failure to
interview S1 was based on invalid reasons. He states in his appeal brief:

The most discriminatory person against me was not interviewed by the
investigating officer. The reason given was that she retired recently and could not
get her forwarding address from VISN-15-HR. It is not surprising to me that they
purposely did not want to give the address; Always – there is a forwarding
address when someone retires. An investigation based on not interviewing the
person who discriminated against me most is not valid.

The EEO investigator made several unsuccessful attempts to obtain contact information for S1
and documented her efforts in the investigative report. IR 256, 264-65, 272, 282. In light of the
affidavits from S2, S3, and the Compensation Panel members as well as the documentation of
the Panel’s deliberations regarding Complainant’s salary increase, we find that the EEO
investigator’s failure to obtain an affidavit from S1 does not impede our ability as a fact finder to
make a well-reasoned decision on the facts presented in this record. Ultimately, we agree with
the Agency that Complainant has not sustained his burden to prove that the decision to grant him
a $1,500 market-pay salary increase was attributable to unlawful consideration of his national
origin, religion, color, or gender by anyone involved in making that decision.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that he was discriminated
against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
Agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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.

RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 25, 2018
Date