Omer P.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 15, 2016

0120142112 (E.E.O.C. Nov. 15, 2016)

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

Omer P.,1
Complainant,

v.

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

Appeal No. 0120142112

Hearing No. 480-2012-00151X

Agency No. 200P-0691-2011104016

DECISION

Complainant filed an appeal from the Agency’s final order dated April 21, 2014, finding no
discrimination with regard to his 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.,
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. For the following reasons, we AFFIRM the Agency’s final order
finding no discrimination.

BACKGROUND

In his complaint, dated July 18, 2011, Complainant, an applicant for employment at the
Agency, alleged discrimination based on race (not stated), age (over 40), and disability (head
injury) when the Agency did not refer him for consideration for a Respiratory Therapist
position from January 10, 2011, through June 11, 2011. Upon completion of the investigation
of the complaint, Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). On March 24, 2014, the AJ issued a decision without

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.
0120142112

2
holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. 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. Id. at 255. 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); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection/nonreferral. The Agency stated that it announced two
vacancies for a Respiratory Therapist (RT) job which opened on October 9, 2009, and closed
on December 31, 2009. On January 10, 2010, Complainant submitted an application for a
Respiratory Therapist job to the Agency Human Resources (HR) Specialist who told him that
there were no vacant respiratory therapist positions at that time but he would hold onto the
resume and notify him when there was a vacant position. In June, 2011, Complainant went to
the HR Specialist and was told that he was not referred for a RT position. The Agency
indicated that when Complainant submitted his application on January 10, 2010, the prior
vacant RT position was already closed on December 31, 2009, and there were no RT vacancies
from January, 2010, to June, 2011. Complainant indicated that he sustained a head injury in
1985, while working at the Long Beach Naval Shipyard. The HR Specialist stated that he was
not aware of Complainant’s medical condition until June, 2011, when Complainant raised the
issue of his disability for the first time.

Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that Complainant failed to show that the Agency action was motivated by
discrimination or that there was indeed a vacancy during the time period at issue.
Furthermore, we find that Complainant failed to show that he was treated less favorably than a
similarly situated employee under similar circumstances or that the Agency’s reason for not
0120142112

3
considering his application for a RT position during the relevant time period was a pretext for
discrimination. Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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
0120142112

4
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 15, 2016
Date