U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Monroe A.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120180890
Agency Nos. 200J-0583-2011103115 and 200J-0583-2013103855
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 27,
2017 final decision concerning an equal employment opportunity (EEO) complaint claiming
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.
BACKGROUND
During the period at issue, Complainant worked as a Program Support Clerk, GS-4, at the
Agency’s Richard L. Roudebush VA Medical Center in Indianapolis, Indiana.
On May 29, 2013 and September 13, 2013, Complainant filed two formal EEO complaints.
Complainant claimed that he was discriminated against based on race (Black), sex (male),
disability (clinical depression, schizophrenia), age (YOB: 1952), and in reprisal for prior
protected EEO activity. On July 29, 2014, following its investigation of the two complaints, the
Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination,
which Complainant appealed.
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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In EEOC Appeal No. 0120150343 (Nov. 18, 2016), the Commission affirmed the Agency’s
finding of no discrimination for most of the claims raised. However, the Commission reversed
the Agency’s procedural dismissal of the claim that beginning in November 2005 and continuing
through July 2, 2011, Complainant, a GS-4 Program Supply Clerk was performing the job duties
of a GS-5 Medical Supply Technician. This claim was remanded to the Agency for investigation
and further processing.
After a supplemental investigation was conducted for the claim, the Agency provided
Complainant with a copy of the report of investigation and notice of the right to request a hearing
before an AJ or request a final decision within thirty days of receipt of the correspondence.
Complainant requested a final decision.
On December 27, 2017, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b),
finding no discrimination.
The instant appeal followed.
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”).
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
01201808903
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant stated that he was diagnosed with clinical depression between 1988 and 1989.
Complainant further stated that he was also diagnosed with schizophrenia from 2005 through
2011. Complainant explained that his conditions did not prevent or limit him from performing
ordinary tasks or from performing major duties of his job.
The responsible management officials indicated that they were aware that Complainant was a
CWT2 program participant at the Agency before he was hired as a regular worker, but denied
being aware of Complainant’s medical condition or having access to Complainant’s medical
records. We further note that the record supports a determination that the CWT program has
“served severely disabled veterans with a mental health diagnosis through local partnerships.”
For the sake of argument, we presume, without so finding, the Complainant is an individual with
a disability.
Here, Agency management officials articulated legitimate, non-discriminatory reasons for
determining that Complainant was not performing the job duties of a Medical Supply
Technician, GS-2005-5, from November 2005 through July 2, 2011.
Complainant’s first line supervisor (“S1”) explained that Complainant was a Program Assistant,
GS-4, and was only responsible for completing his position duties, and that Complainant did not
perform duties above his pay grade. S1 explained that Complainant was the timekeeper and this
task was limited to entering employees’ time into the computer system. S1 clarified that she
maintained the time schedules and monitored and approved everyone’s attendance. S1 explained
that Complainant was not responsible for coordinating medical device deliveries. Instead,
Complainant answered the phone, annotated where the medical device was supposed to go, and
then designated staff to come to the front desk to retrieve the item. S1 further explained that
Complainant was not required to make employee contact lists but all employees, including
Complainant, were responsible for protecting patient privacy.
S1 denied that Complainant was responsible for publishing the work schedules because she, S1,
was responsible for this task. S1 also denied that Complainant completed GS-5 level Medical
Supply Technician or Lead Technician duties.
2 The CWT program is a Veterans Health Administration vocational rehabilitation program that
endeavors to match and support work-ready veterans in competitive jobs.
01201808904
However, S1 stated that Complainant would independently try to complete duties that were
outside of his job functions. S1 stated that Complainant would tell people that he oversaw the
CWTs even though S1 supervised the CWTs, and other employees would question why
Complainant was telling them what to do. S1 explained that she had to counsel Complainant on
this very issue.
Complainant’s second line supervisor (“S2”) from May 2007 to May 2010 stated that during this
period, Complainant “manned the front desk of the Sterile Processing department.” S2 stated
that there was some “overlap” between GS-4 and GS-5 level duties. However, S2 stated that
Complainant was not required to complete duties above his grade level. S2 clarified that the
duties for which Complainant were primarily responsible were the majority of the duties
Complainant completed. S2 reasoned that completing some higher-level duties is not grade-
determining unless the individual was completing higher-level duties more than 25 percent of the
time. S2 explained that while working the front desk, Complainant would “receive requests,
print copies of requests, and hand them off to others for fulfillment.” S2 stated that there was no
expectation for Complainant to carry out the requests he received because those duties would be
above his pay grade. S2 further explained that Complainant also processed but did not approve
timecards which was a task within his GS-4 duties.
Complainant’s second line supervisor (“S3”) from October 2010 through May 2012, explained
that Complainant, attempted on a few occasions to expand the importance of what he did as a
secretary at the front desk. S3 further explained that Complainant was a Program Support
Assistant and he completed the majority of these duties. S3 acknowledged that Complainant
performed some Supply Technician duties to a certain extent, but Complainant did not perform
Supply Technician duties such as forecasting, purchasing, or managing the supply of inventory
items, and Complainant had no involvement in medical supplies. S3 explained that Complainant
only ordered equipment “that had already been sent up” or had been “given to him to order when
requested by a nurse.” S3 further explained that Complainant did not coordinate employees who
were making medical equipment deliveries. Rather, Complainant was responsible for calling
individuals to come to the front desk to pick up deliveries.
S3 also explained that he made it known to all employees that he wanted to revise their position
descriptions to see it their positions could rate at a higher level. S3 further explained that he
created a GS-5 position with a “sufficient number of positions available.” S3 stated that he
instructed everyone to apply, including Complainant. However, Complainant was the only
person who chose not to apply. S3 further stated that he worked on a position description
revision for Complainant in the fall of 2010, but the position description was returned for
classification as a GS 4.
The Lead Supply Technician (“LST”) stated that Complainant was a “secretary and never did the
function of a Supply Technician.” The LST explained that Complainant answered the phone,
took requests for medical supplies, and the CTW workers would take the requests and deliver the
supplies.
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Another Lead Supply Technician (“LST2”) stated that he had previously been a Medical Supply
Technician from 2005 to 2010. During this period, LST2 explained that Complainant worked
primarily at the front desk and “occasionally” delivered medical supplies to the floors even
though this task was not part of his job description. The LST2 explained that Complainant
volunteered to make the deliveries due to short staffing, and Complainant had a “desire to get the
job done.”
The Chief of Supply Purchasing and Distribution (“SPD Chief”) stated that she reviewed a list of
Complainant’s duties and she believed Complainant was working above his pay grade. The SPD
Chief stated that she believed that the duties listed on Complainant’s performance appraisal
should have been shared with other members on his team and Complainant should not have been
expected to complete the duties on his own. The SPD Chief acknowledged that the duties listed
on Complainant’s performance appraisal were the same duties listed in his position description,
but she maintained that Complainant’s duties were “too much” for a GS-4 position. The SPD
Chief further explained that S1 and the LST had Complainant completed tasks that the SPD
Chief believed were outside of Complainant’s position description. The SPD Chief stated that
she believed that S1 and the LST discriminated against Complainant based on his age and sex.
We note that some of the SPD Chief’s statements directly conflict with the statements provided
by the management officials. Here, however, Complainant effectively waived his right to have
this matter considered before an EEOC AJ. If Complainant had indeed elected a hearing, then
the AJ may have developed the record more through discovery and cross-examination of witness.
Moreover, we lack the possible benefits of an EEOC AJ’s credibility determinations. We are left
with the SPD Chief’s version of events and that of Agency management which are at odds. As
such, the evidence of record was at best, in equipoise. See Complainant v. Dep't of Health and
Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland
Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric., EEOC
Appeal No. 0120102187 (Aug. 23, 2012).
We conclude, after careful consideration of the record, that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on his race, sex,
disability, or in reprisal for prior protected EEO activity.
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
01201808906
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).
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.
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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
July 2, 2019
Date
