Octavio C.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 4, 2018

0120151095 (E.E.O.C. Jan. 4, 2018)

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

Octavio C.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120151095

Hearing No. 420-2014-00252X

Agency No. 200I-0619-2014101278

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the January 22, 2015 final Agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse in
the Mental Health Unit at the Agency’s Central Alabama Veterans Healthcare System in
Tuskegee, Alabama. Complainant was in a relationship with his male partner, the then-Associate
Director of Patient Care Services. On October 23, 2013, Complainant submitted a memorandum
requesting reassignment to the Registered Nurse Care Coordination Home Tele-Health Unit on
the Montgomery campus. The request was signed by the Nurse Manager and the Associate
Chief Nurse of the Mental Health Unit and the Nurse Manager and Associate Chief Nurse of the
Ambulatory Care Unit. The Associate Chief Nurse of the Mental Health Unit noted by her

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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signature “with approval to backfill! This is a MHC position” and the Associate Chief Nurse of
the Ambulatory Care noted by his signature “cannot accommodate school schedule. May be
required to work extended hours and weekend clinic hours.” The signatures and notes were
undated. The memorandum contained a place for the signature of the Human Resources (HR)
Chief to sign; however, instead of signing on that line, she noted at some point “It is not HR
authority to approve or disapprove this request. Since the request is to move within Nursing
Service, it would be the decision of Nursing Service leadership to approve this request.”

On November 19, 2013, Complainant submitted a second request for reassignment signed again
by the Nurse Manager and the Associate Chief Nurse of the Mental Health Unit and the Nurse
Manager and Associate Chief Nurse of the Ambulatory Care Unit with the same notes by their
signatures. The Staffing Specialist and the Administrative Officer for Patient Services had
several discussions about Complainant’s eligibility for the position as he was a Nurse 1 and was
seeking a reassignment to a Nurse 2 position. The HR Chief sent an email acknowledging that
Complainant’s reassignment request was received by HR on December 11, 2013. Ultimately,
Complainant’s reassignment request was never fully processed, and the position at issue was
later announced as vacant through a vacancy announcement. Complainant applied for the
position, but later withdrew from consideration for the position as both an applicant and for
reassignment. Complainant believed that the HR Chief held up his reassignment request because
he is White and because of his relationship with the Associate Director of Patient Care Services.

On March 4, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian), sex (male), sexual orientation, and color (White)
when, on or about November 7, 2013, the Human Resources Chief stopped Complainant’s
reassignment to the CAVHCS East Campus in Montgomery, Alabama.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. On August 28, 2014,
Complainant withdrew his hearing request and the AJ remanded the complaint to the Agency for
a FAD.

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and found that management had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the HR Chief stated that she had no awareness that Complainant’s
reassignment request was in the HR Office until December 3, 2013. The record showed that
although the Nursing Service had approved Complainant’s reassignment request, they had not
entered a SF-52 with a start date into the system. The HR Chief explained that this
documentation was needed to complete the reassignment process. The HR Chief further
confirmed that the reassignment request was not on an HR template and incorrectly included a

2 The Agency dismissed an additional allegation that Complainant raised during the informal
stage, but not in his formal complaint for failure to state a claim. Complainant raised no
challenges to this dismissal; therefore, the Commission will not address it herein.
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signature block for her to indicate “Recommend/Approve/Disapproval.” Additionally, the
approving officials in the Nursing Service included “qualified endorsements” with their
signatures at both ends of the reassignment process. The Mental Health Nursing leadership
cautioned that it would need to “backfill” the position left vacant whenever Complainant
transferred to the Montgomery campus. Additionally, the Ambulatory Care leadership cautioned
that it would be unable to accommodate Complainant’s school schedule and that Complainant
might be required to work extended hours in his new assignment. Thus, the Agency concluded
that the record showed that it was the Nursing Service, not HR, that was responsible for
approving or disapproving Complainant’s request for reassignment.

Next, Complainant argued that management’s reasons for its actions were pretext for unlawful
discrimination. Complainant alleged that the HR Chief intentionally delayed the implementation
of his reassignment because he is a White male in a partnership with another male. Complainant
claimed that the Staffing Specialist told his partner that the HR Chief became involved early in
the process and held up his application for reassignment. The Staffing Specialist denied telling
Complainant’s partner that the HR Chief was the reason for the delay. The Agency determined
that there was no evidence that the HR Chief was involved at any time prior to December 2013.
In addition, Complainant argued that the HR Chief quickly processed a female Nurse’s
reassignment request within days of its submission. The HR Chief explained that in that
situation, the Nursing Service had properly entered an SF-52 with a start date, and the process
was thereby completed expeditiously.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant submits additional documents to “validate and/or negate some of [the
FAD’s] findings.” Complainant questions why his transfer request was contingent upon
endorsements when others were not. Further, Complainant includes a copy of a cell phone bill
which he claims shows that the Staffing Specialist lied in her statement and proves that she had a
13-minute phone call with his partner. In addition, Complainant provides documents that he
claims show that it was usual and customary for the HR Chief to sign off on a reassignment
request. Complainant contends that he was given numerous excuses for the delay with his
reassignment request, but he believes the actual reason was the HR Chief’s animus toward his
race, sex, and sexual orientation. Accordingly, Complainant requests that the Commission
reverse the FAD.

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ANALYSIS AND FINDINGS

Disparate Treatment

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). 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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 Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep't of Cmty. 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).

The Commission notes that the Commission has jurisdiction over Complainant’s sexual
orientation discrimination claim pursuant to the Commission’s finding in Baldwin v. Dep’t of
Transp., which held that a claim of sexual orientation discrimination is a claim of sex
discrimination, and therefore covered under Title VII and properly processed under the 29 C.F.R.
Part 1614 process for EEO complaints. Baldwin v. Dep't of Transp., EEOC Appeal No.
0120133080 (July 15, 2015).

Here, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. More specifically, the record reveals that there were several issues that needed to
be resolved regarding Complainant’s request. For instance, the request was signed by various
Nursing Service management officials, but contained notes indicating that there were potential
conditions or details that needed attention. ROI, at 118. Nonetheless, the Staffing Specialist and
the Administrative Officer of Patient Care Services initially began working on processing
Complainant’s reassignment request beginning in November 2013. Id. at 98-99, 132. Soon
thereafter, the Staffing Specialist and the Administrative Officer discussed concerns with
Complainant’s request including questions about whether Complainant, a Nurse 1, could transfer
into the position, a Nurse 2 position. Id. at 127-31. The Staffing Specialist affirmed that based
on the Nurse Professional Standards Board policy, Complainant would have needed to go
through all three levels of Nurse 1 before being promoted to Nurse 2. Id. at 99. The Staffing
Specialist asserted that the issue was ultimately not resolved because HR could not place
Complainant into a position for which he was not qualified. Id. The Staffing Specialist
confirmed that the position at issue was ultimately announced in a vacancy announcement and
Complainant was encouraged to apply for it as the selecting official could consider his work
toward completing a Bachelor’s degree as meeting the eligibility requirements. Id. at 100.
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The HR Chief confirmed that she was not involved in the matter until December 2013, and she
noted on the request that she did not have the authority to approve or disapprove the request. Id.
at 89, 118. The HR Chief affirmed that generally, the Nursing Service would make a decision
regarding a personnel action, issue SF-52s to effectuate the action, and forward the paperwork to
HR to code the action in the system. Id. at 89. The HR Chief added that there was no written
policy or procedure regarding the reassignment/transfer process. Id. at 90. On December 11,
2013, the HR Chief indicated to the Administrative Officer that the request had been received,
but that the position Complainant was seeking had been announced and closed on December 6,
2013. Id. at 121. The HR Chief noted that the request appeared to have been endorsed by the
proper management officials; however, “there were several comments/conditions made.” Id.
The HR Chief informed the Administrative Officer that management could still decide to fill the
vacancy with Complainant’s request for reassignment instead of the vacancy announcement and
that HR would refer his name for the requested position. Id. at 121-22. Complainant
acknowledged that he was later offered the position, but he informed officials that he was no
longer interested because he did not want to be at the same campus as the HR Chief. Id. at 73,
123.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

Complainant argues that the HR Chief acted with discriminatory animus toward him because of
his race, color, sex, and his partnership with the Associate Director. The HR Chief stated that
she had never met Complainant, could not tell what race or color he was, and that she had no
knowledge of Complainant’s relationship with the Associate Director. ROI, at 88-89. The HR
Chief acknowledged that she was aware that the Associate Director and Complainant shared an
address, but stated that she was only concerned that no nepotism rules were violated when
Complainant was first hired. Id. at 89. Additionally, Complainant alleges that the Staffing
Specialist called his partner on his personal cell phone and stated that the HR Chief was holding
up Complainant’s reassignment because of their relationship. The Staffing Specialist stated that
she may have spoken to Complainant’s partner about Complainant’s reassignment request, but
denied stating that the HR Chief was holding it up because of Complainant’s sexual orientation
or his relationship with the Associate Director. Id. at 102. Complainant’s submitted
documentation does not support his claim that the Staffing Specialist told his partner that his sex
or sexual orientation was the basis of the HR Chief’s alleged actions.

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Finally, as to Complainant’s argument that the HR Chief broke from her usual and customary
practice of signing off as an approving official on transfers and reassignment requests, the
submitted evidence only shows that other employees requested reassignments/transfers using a
similar template as Complainant’s request. The HR Chief affirmed that there was no official
template or format for submitting reassignment requests and Complainant’s request with a line
for her signature was not generated by HR. ROI, at 88, 91.
Complainant’s submitted comparator evidence contains areas for the HR Chief to sign; however,
she did not sign those requests either. Furthermore, Complainant’s submitted documentation
contains an email from the HR Chief confirming a reassignment for an employee. In this email,
the HR Chief informs the Nursing management officials that an SF-52 needed to be generated
for the employee to process the reassignment in the same manner as she stated in her affidavit.

As Complainant chose to withdraw his hearing request, the Commission does not have the
benefit of 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. While
there may have been misunderstandings or errors in the processing of Complainant’s
reassignment request, the Commission finds no persuasive evidence that Complainant’s
protected classes were a factor in any of the Agency’s actions. At all times, the ultimate burden
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s
reasons were not the real reasons and that discriminatory animus was a factor in its actions.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant has
not established that he was subjected to discrimination as alleged

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
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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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

January 4, 2018
Date