Orlando O.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

May 4, 2016

0120142567 (E.E.O.C. May. 4, 2016)

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

Orlando O.,1
Complainant,

v.

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

Appeal No. 0120142567

Agency No. 200H05262013104378

DECISION

On July 11, 2014, Complainant filed an appeal from the Agency’s June 13, 2014, 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. 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

At the time of events giving rise to this complaint, Complainant worked as a Diagnostic
Radiologic Technologist, GS-8, in a permanent position at the Agency’s James J. Peters
Medical Center in the Bronx, New York. In June 2012, three of Complainant’s diagnostic
radiologic technologist colleagues, all of whom were Black and serving in temporary positions,
were promoted to the GS-9 level and converted to permanent status. In 2013, Complainant
became aware that his colleagues had been promoted to GS-9 and ultimately made a request to
management that he and similarly situated coworkers also be promoted. On September 3,
2013, the Agency submitted to the Professional Standards Board (PSB)2 a recommendation that
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.
2 The Professional Standards Board is an internal Agency organization charged with
determining the appropriate levels of compensation for Agency employees.

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Complainant be promoted to the GS-9 level. Before the PSB acted, on October 2, 2013,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Hispanic) and color (light skinned) when his application for promotion to the
position of Diagnostic Radiologic Technologist, GS-9, was not granted. Ultimately, the PSB
approved management’s recommendation and Complainant’s promotion to the GS-9 level
became effective on November 17, 2013.

The Agency accepted the complaint and conducted an investigation. At the conclusion of 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 Equal Employment Opportunity Commission
Administrative Judge (AJ). At 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.

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). 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 where 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).

Here, the Agency explains that the comparator employees were promoted before Complainant
because they each had temporary appointments that could not be extended without PSB action.
This prompted the Agency to take action to obtain PSB approval to place them in permanent

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positions. Originally, the Agency did not intend to promote the comparators but did so when
PSB determined that the duties they performed as Diagnostic Radiologic Technologists entitled
them to GS-9 grades. The delay in promoting Complainant was inadvertent. The Agency had
no system to verify that all employees eligible for promotion had, in fact, been promoted.
Complainant was simply “overlooked.” Report of Investigation at 125. The Agency began
the process of promoting Complainant and his coworkers only when Complainant complained
about the comparators’ promotions.

The Agency’s claim of inadvertent delay is a legitimate, nondiscriminatory reason for its
actions. An agency may make a mistake so long as there is no evidence to indicate that the
mistake was based on Complainant's protected classes. See Hsieh v. Dep't of Veterans Affairs,
EEOC Appeal No. 0120120980 (June 4, 2012) (discrimination not found where there was a
mistaken application of rule in selection process); Carroll v. Dep't of Justice, EEOC Appeal
No. 01A20985 (Jan. 21, 2003)(discrimination not found where there was inadvertent failure to
consider prior work experience). Complainant does not dispute the Agency’s recounting of
events. He has failed to prove that the Agency’s reason for its actions was a pretext designed
to conceal discriminatory animus.

CONCLUSION

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.

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,

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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
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

May 4, 2016
Date