[Redacted], Alexander A., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2020002752 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexander A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002752 Hearing Nos. 451-2016-00108X, 451-2019-00145X Agency Nos. 2003-0671-2015102472, 2003-0671-2016103533 & 2003-0671-2018104842 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated January 16, 2020, finding no discrimination concerning his three complaints 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. 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Biomedical Equipment Support Specialist, GS-9, with the South Texas VA Healthcare System in San Antonio, Texas. His actual duty station was the VA Medical Center in Kerrville, Texas. On May 21, 2015, June 8, 2016, and August 6, 2018, Complainant filed three complaints, which were later consolidated, alleging that he was subjected to a hostile work environment based on age (over 40) and in reprisal for prior EEO activity, as evidenced by the following events: 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. 2020002752 2 Agency No. 2003-0671-2015102472: 1. From 2012 to October 15, 2014, the Engineering Supervisor, Complainant’s then first level supervisor (S#1), denied Complainant's request to attend training. 2. On April 29, 2013, S#1 looked at Complainant's white hair and stated he would always be a GS-9, after he asked what he could do, to be promoted. 3. In April 2014, S#1 told Complainant, he would always be a GS- 9/Hybrid 38 employee and his coworker would always be a GS-11/Hybrid 38 employee. 4. On March 10, 2015, S#1 and the Biomedical Engineering Chief (Complainant’s then second level supervisor who later became Complainant’s first level supervisor (S#2)) did not select Complainant for a Biomedical Equipment Support Specialist position, GS-11, advertised under vacancy announcement number VHA-671-15-1301687-KYL-BUS. 5. On April 13, 2015, S#1 denied Complainant's request for administrative leave to attend a training conference. 6. On April 22, 2015, S#2 threatened to demote Complainant, after he inquired about requesting a board review of his work assignments, versus his actual pay grade. Agency No. 2003-0671-2016103533: 7. From December 15, 2015, to the present, S#1, S#2, and the Administrative Officer restricted Complainant’s ability to forward, copy, or print emails. 8. On March 11, 2016, S#2 threatened to demote Complainant and informed him that his position was reviewed and should be reclassified from a GS-9 to a WG-112 position as a result of a desk audit. 9. On May 11, 2016, S#2 denied Complainant’s request to attend a training. 10. On May 25, 2016, S#2 denied Complainant's request to attend the Association for the Advancement of Medical Instrumentation (AAMI)3 training. 2 Although the claim was initially identified as “from a WG-11 to a GS-9,” Complainant later clarified it as “from a GS-9 to a WG-11.” 3 Although the claim was initially identified as the “Advance Safety in Healthcare Technology” training, Complainant later clarified it as the “Association for the Advancement of Medical Instrumentation” training. 2020002752 3 Agency No. 2003-0671-2018104842: 11. In approximately May 2017, Complainant’s then supervisor (S#3) failed to pay Complainant for 19 hours of overtime authorized by S#2. 12. On March 26, 2018, S#3 refused to authorize Complainant's request to bring a government computer to a training class. 13. On April 11, 2018, S#3 denied Complainant's request to work a compressed work schedule of 4 days per week/10 hours per day. 14. On April 20, 2018, S#3 rated Complainant as Satisfactory on his midyear performance rating using criteria that was not allowed under the Union's master agreement. 15. On April 25, 2018, S#3 denied Complainant's request for 24.5 hours of overtime pay. 16. On April 26, 2018, S#3 denied Complainant's request for travel pay to attend training. 17. On July 5, 2018, S#3 informed Complainant that after he was converted to a Hybrid Title 38 employee, he would be rated as a GS-9 even though he was performing the duties of a GS-11. 18. On September 8, 2018, S#3 denied Complainant's request to work a compressed work schedule of 4 days per week/10 hours from 7:30 am to 6:00 pm, Monday thru Thursday. 19. On December 11, 2018, S#3 rated Complainant “Excellent” as opposed to “Outstanding” on his performance appraisal. 20. On December 14, 2018, S#3 promoted Complainant to GS-11, Step 2, retroactive to May 25, 2018, while others were promoted to Step 8, retroactive to February 18, 2018. 21. On December 24, 2018, S#3 denied Complainant the opportunity to earn holiday pay on Christmas Eve.4 After completion of the investigation of the complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but withdrew the request on June 5, 2019. On June 5, 2019, the AJ accordingly dismissed Complainant’s hearing request and returned the complaints to the Agency for a final Agency decision. 4 The Agency accepted claims 4, 5, 9, 10, 11, 13, and 15-21 as timely independent claims of disparate treatment in addition to part of a harassment claim. 2020002752 4 On January 16, 2020, the Agency issued its final Agency decision finding that Complainant was discriminated against in reprisal for prior EEO activity when he was issued an “Excellent” performance appraisal for fiscal year 2018, described in claim 19. The Agency however found no discrimination or harassment with respect to the remaining claims as alleged. Complainant appeals the Agency’s final decision. Specifically, Complainant indicates that he is not appealing claims 14 and 19 - 21 of the final Agency decision. Accordingly, we will not address Complainant’s claims 14 and 19 - 21 in this decision. 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 (EEO MD-110), Chap. 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"). Regarding claim 1, S#1 indicated that he denied Complainant’s requested training, a free Network training program, because too many people had already enrolled in the training and there were already three or four employees on a standby list. S#1 stated that he informed Complainant that he would be placed on a waiting list if he reapplied for the same training program later. Complainant acknowledged that management allowed him to attend a “medivator” (sterilizer) training related to his position duties during this time period at issue. Complainant did not identify any other training in this claim. Regarding claims 2 and 3, S#1 denied making the statements. Regarding claim 4, the Agency indicated that the GS-11, Biomedical Equipment Support Specialist position was based on a non-competitive, in-house certificate as required at the time by the union. There were no panel members and no interviews were conducted. The Agency stated that three applicants, including Complainant, applied for the GS-11 position at issue. The Agency was seeking a candidate who had an understanding and command of the sophistication of the equipment at the facility. S#1 and S#2 reviewed the applications. S#2 indicated that: all three candidates worked for him; he personally observed their performance and the quality of their performance; and he was looking for a candidate who was detail oriented, went above and beyond their existing duties. All three, including Complainant, were equally qualified in technical capabilities, years of experience, and their fields of experience. 2020002752 5 S#2, a selecting official for the position at issue, stated that he decided to select the Selectee, younger than Complainant, a GS-9, Biomedical Equipment Support Specialist from the Agency’s San Antonio facility, because based on his observation, the Selectee followed through his projects and assignments and he had a greater attention to detail, whereas Complainant did not follow through with some of his assignments. S#1 stated that: the Selectee was very reliable working with the equipment; he was always willing to go the extra mile to complete an assignment; he single-handedly took care of 32 chairs in the Dental Clinic; and he was willing to handle tough projects. S#1 stated that all of these qualities set the Selectee apart from Complainant. S#1 noted that Complainant’s Kerrville facility had a limited number of equipment compared to the Selectee’s San Antonio facility. Complainant claimed that he was more qualified than the Selectee for the position at issue because he was a Certified Biomedical Equipment Technician, a Contracting Officer Representative, a member of the AAMI in various groups, to include ultrasound, electromedical equipment committee, and the electrical safety committee. However, there is no indication these attributes were required for the position at issue. Complainant also claimed that he had over 30 years of experience in the workforce. Again, there is no indication that long years of work experience were required for the position at issue. Complainant’s resume reflects that: he was a Biomedical Equipment Support Specialist at the Agency since March 2011; he was a Fireman/Medic in Harper Volunteer Fire Department (5 hours/week) from May 2005 to March 2011; and he was employed by various private companies prior to December 2008. The Selectee’s resume reflects that he was a Biomedical Equipment Support Specialist at the Agency since October 2010; and he was a Biomedical Equipment Service Technician in Southern Medical Services from February 2010 to October 2010, after obtaining his college degree. Based on the foregoing, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting him for the position. Furthermore, Complainant failed to show that his qualifications for the position were plainly superior to the Selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Regarding claim 5, S#1 stated that he denied Complainant’s requested administrative leave, because Complainant was attending an event on his own expense and it was not sponsored by the government or by the Agency. Regarding claim 6, S#2 denied that he threatened Complainant; rather, he merely attempted to explain the process. Regarding claim 7, S#2 indicated that he used encrypted and permissioned emails as a general rule with any employee that contained sensitive information about their employment or positions. 2020002752 6 S#2 also indicated that the information in emails should not be shared outside the Agency and the conversation should be maintained inside the chain-of-command which instructions Complainant refused to follow. Complainant, on several occasions, had forwarded/printed/copied S#2’s emails to the Director, the Associate Director, and outside their chain-of-command, including his attorneys and union representatives. Complainant does not dispute this. Regarding claim 8, S#2 indicated that Complainant requested a desk audit which resulted his position rating being changed from a GS-9 to a WG-11. However, the rating specialist clearly notified Complainant that he would maintain his GS-9 rating and that only a new person coming into that position would be set at the WG-11 level. Complainant was never reduced to WG-11 rating. Regarding claim 9, S#2 stated that he denied Complainant’s requested training, because it was not required knowledge for Complainant’s pay grade and was outside the scope of his duties. Regarding claim 10, S#2 indicated that he and his superior approved Complainant’s requested training, but it was denied by their executive office because it was not job critical for Complainant and did not provide any enhancement for required skills for him to perform his full duties. Regarding claim 11, S#3 indicated that he did not recall any training Complainant attended in June 2017. S#3 was not Complainant’s supervisor in May/June 2017. The record reflects that on June 15, 2017, Complainant submitted his 20.75 overtime hours request for the AAMI 2017 conference (June 9 - 12, 2017), he attended, to a timekeeper, and not to S#2 (his then supervisor), who in turn referred the matter to S#2. On June 16, 2017, S#2 informed Complainant that he should always submit his overtime request to S#2 directly, not to the timekeeper. Therein, S#2 asked Complainant to provide the “TA” number from his travel authorization for the overtime approval. There is no evidence Complainant provided the requested “TA” number. Regarding claim 12, S#3 indicated that he did not refuse to authorize Complainant’s request for an Agency laptop for the training; rather, S#3 already authorized one Agency laptop to be used by two participants, Complainant and an identified employee. S#3 stated that only a few days before his leaving for the training, Complainant notified S#3 that each participant was required to bring a laptop. Due to short notice, S#3 told Complainant, if he could, to share one authorized Agency laptop with the identified employee. S#3 indicated that at that time, Complainant told S#3 that he could take his personal laptop as an option. In his March 2, 2018 email to S#3, Complainant informed S#3 that he could either take an Agency “clean” laptop or, possibly, take his personal laptop to the training. Regarding claims 13 and 18, S#3 stated that he denied Complainant’s compressed work schedule request because he asked to work 7:30 am - 6 pm (not 6:00 am - 4:30 pm) which was four days at 10 hours per day. 2020002752 7 S#3 indicated that pursuant to a negotiated agreement between the Agency and union, Biomedical Technicians were allowed only three tours of duty options: 6:00 am - 4:30 pm (four days at 10 hours per day); 7:00 am - 3:30 pm (five days at 8 hours per days; and 8:00 am - 4:30 pm (normal business hours). Complainant acknowledges that he was subsequently granted his requested compressed work schedule in November 2018. Regarding claim 15, the record reflects that S#3 sought assistance from an Employee and Labor Relations Specialist (ELRS) regarding Complainant’s overtime request. The ELRS informed Complainant and S#3 that overtime was not authorized for official government travel; rather, Complainant would need to file it as compensatory time. Based on the ELRS’s recommendation, S#3 notified both Complainant and the identified employee, who attended the training with Complainant, described in claim 12, to submit a VA Form 0861, Request for Credit of Compensatory Time for Travel. The identified employee accordingly submitted his VA Form 0861. Complainant however failed to submit the requested form. Regarding claim 16, S#3 denied Complainant’s training request because: Complainant had just returned from his training (March 26 - April 6, 2018) which was only a few days earlier; he had not yet submitted a VA Form 0861 for that training; and he could not justify approving another training for him when some employees had not yet been given an opportunity to attend training. Although Complainant indicates that an identified employee was allowed to attend the training at issue, we find that the identified employee was not a similarly situated employee because she was a Biomedical Engineer, not a Biomedical Equipment Support Specialist. Regarding claim 17, Complainant claimed that S#3 informed him that after a Hybrid Title 38 classification, he would be rated as a GS-9, and not as a GS-11, to which he was entitled. S#3 stated that the Human Resources was responsible for the Hybrid Title 38 classification for Biomedical Technicians. As a result of the classification, Complainant’s pay grade was ultimately changed/promoted from a GS-9 to a GS-11, and he did not object to the conversion. Complainant acknowledges that the conversion affected all Biomedical Technicians and he was promoted/converted to a GS-11 in December 2018. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Regarding his claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. 2020002752 8 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2020002752 9 Any supporting documentation must be submitted together with the 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 June 8, 2021 Date