Norris D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 9, 2018

0120170583 (E.E.O.C. Nov. 9, 2018)

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

Norris D.,1
Complainant,

v.

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

Appeal No. 0120170583

Agency No. 200I-0546-2015-103031

DECISION

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 October 25, 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.

ISSUE PRESENTED

The issue presented is whether the Agency properly found that Complainant did not prove he was
not selected for positions because of his previous EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Facility Recall
Coordinator, GS-5, at the Agency’s Medical Center in Miami, Florida

On January 6, 2016, Complainant filed an EEO complaint in which he alleged that the Agency
discriminated against him in reprisal for prior protected EEO activity arising under Title when:

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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1. On October 7, 2015, he learned that he was not selected for the position of
Management Assistant, GS-0344-6, under vacancy announcement number WC-15-
DT-1380783-BU;

2. On October 7, 2015, he learned that he was not selected for the position of
Administrative Officer, GS-0341-7, under vacancy announcement number WC-15-
JET-1399747;

3. On October 7, 2015, he learned that he was not selected for the position of Program
Specialist, GS-0301-9, under vacancy announcement number WC-15-DT-
1343085; and

4. On October 7, 2015, he learned that he was not selected for the position Advanced
Medical Support Assistant, GS-06796, under vacancy announcement number WC-
15-JHM-1511710-BU.

Regarding claim 1, in an investigative statement, Complainant stated that he did not know when
he applied for the Management Assistant position. He stated that he was placed on the certificate
indicating he was qualified for the position, but he was not interviewed. Complainant further
stated that management told him that he was not selected because it had already selected someone.

Regarding claim 2, Complainant stated that he was one of over 300 people on the certificate for
the Administrative Officer position. He stated that he did not get the position because the
Associate Director (AD) had already chosen the selectee based on the AD and selectee working
on a project together.

Regarding claim 3, Complainant stated that he was not interviewed for the Program Specialist
position. He stated that the Chief’s daughter was selected for the position, which reflected
nepotism. Regarding claim 4, Complainant stated that he was qualified and interviewed for the
Advanced Medical Support Assistant position. However, he stated that management informed
him that he was not selected because it wanted a larger pool of candidates.

Complainant further stated that he has a Master’s Degree in Business Management and ran three
businesses, including a furniture store and art gallery. Complainant also stated that he worked on
the PACT initiative, which is a Patient-Aligned Care Team involving pairing veterans with health
care professionals to plan for health care and wellness.

Final Agency Decision

After 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

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In its final decision, the Agency dismissed claim 1 on the basis that it was initiated by untimely
EEO Counselor contact. The Agency reasoned that on June 25, 2015, Complainant filed an
informal complaint regarding this matter, and during counseling, management provided a copy of
the June 28, 2015, disposition letter notifying Complainant that another candidate had been
selected for the position. The Agency noted that Complainant withdrew this claim on July 2, 2015,
but again untimely raised it with a counselor on October 22, 2015.

Regarding the remaining claims, the Agency found that Complainant did not prove that the
Agency’s nondiscriminatory explanations were pretext for unlawful discrimination. Therefore,
the decision concluded that Complainant failed to prove that the Agency subjected him to reprisal
as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant maintains that he was “one of the most qualified people in the country”
for the positions because he traveled all over the country for the Agency and received training for
the Advanced Medical Support Assistant position. Complainant further maintains that he was
qualified for the positions because he was a “champion leader” for the PACT initiative.
Additionally, Complainant contends that he was told he was “black-balled” because he saw things
at the Agency that put him at odds with stakeholders and stood up when veterans’ access became
an issue in the news. The Agency does not present any arguments on appeal.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Claim 1

As an initial matter, we note that the Agency dismissed claim 1 on the basis that it was initiated
by untimely EEO Counselor contact. On appeal, Complainant does not challenge the Agency’s
determination regarding this matter. Therefore, we exercise our appellate discretion and decline
to address this matter herein.

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Claims 2, 3, and 4: Disparate Treatment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a complainant to prevail, he must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In this case, for purposes of analysis, we assume arguendo that Complainant established a prima
facie case of reprisal. Nonetheless, we find that the Agency provided legitimate,
nondiscriminatory reasons for its actions. Specifically, for claim 2, the Chief stated that the
Administrative Officer position was advertised as at the GS-7 level, with a GS-9 full performance
level target. She further stated that there were over 400 applicants for this position; therefore, she
asked Human Resources to narrow the pool by only looking at applicants who worked at the Miami
facility and immediately qualified at the GS-9 level. The Chief further stated that 20 applicants
qualified at the GS-9 level and were interviewed, but Complainant was not among this group
because he was not qualified for the GS-9 level.

Regarding claim 3, AD stated that he was the selecting official for the Program Specialist position,
and he deemed Complainant minimally qualified for the position because, unlike the selectee, he
did not have experience in controlled substances and had not demonstrated he could communicate
effectively using verbal and written skills. Regarding claim 4, the Medical Administrative Officer
stated that he was the selecting official for this position, and Complainant was not selected for this
positon because no selection was made pursuant to this vacancy announcement. The Community
Based Outpatient Clinics (CBOC) Coordinator stated that he was part of the selection panel for
this position, but no selection was made on the certificate.

Attempting to prove reprisal, Complainant maintains that he was told by a coworker that he was
black-balled by management. However, during the investigation of this complaint, the coworker
denied making such a statement. Regarding the Administrative Officer position and the Program
Specialist position, Complainant has not shown that he possessed plainly superior qualifications
to the selectees. Further, regarding the Medical Administrative Officer position, the record
indicates that this vacancy announcement was canceled.
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Cancellation of a vacancy announcement is a legitimate, nondiscriminatory reason for the
Agency’s decision not to select Complainant for this position. See Wilburn R. v. Consumer
Financial Protection Bureau, EEOC Appeal No. 0120161232 (May 3, 2018); see also Sandy S. v.
Department of Veterans Affairs, EEOC Appeal No. 0120162123 (November 29, 2017) (finding
cancellation of vacancy announcement legitimate, nondiscriminatory reason for nonselection).
Complainant has provided no evidence that the Agency’s reasons for its actions are pretext to
conceal discriminatory animus. Thus, we find that the Agency properly found that Complainant
did not prove he was subjected to reprisal because of his EEO activity.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision for the reasons
set forth in this decision.

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.
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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.
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

November 9, 2018
Date