Vince D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120171501 (E.E.O.C. Nov. 30, 2018)

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

Vince D.,1
Complainant,

v.

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

Appeal No. 0120171501

Agency No. 2003-0686-2015103986

DECISION

Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant established that the Agency’s proffered explanation
for his suspension was pretext to mask discrimination based on his sex.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide
Supervisor at the Agency’s Eisenhower VA Medical Center in Leavenworth, Kansas. Report of
Investigation (ROI), at 63. On April 17, 2015, the Environmental Management Services (EMS)
Assistant Chief issued Complainant a Proposed Suspension for 10 days, charging Complainant
with Inappropriate Conduct and the Failure to Follow Supervisory Instructions. Id. at 178-79.

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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Therein, Complainant was cited with raising his voice at a veteran patient that the patient could
not be in the waiting room and needed to be in isolation because of his methicillin-resistant
staphylococcus aureus (MRSA) infection. Id. The Proposed Suspension accused Complainant of
making statements to the patient in a loud tone, such as “You are going to contaminate the entire
room and the water fountain . . .” Id. The Proposed Suspension also noted that Complainant’s
“voice was of such a volume and tone that a Nurse Manager had to physically interject into the
conversation to get it to stop.” Id. In the Proposed Suspension, Complainant was also cited with
the failure to follow management’s instructions when he issued a suspension to a subordinate
without the presence of the subordinate’s representative. Id. The EMS Assistant Chief noted that
the suspension was compromised, as Complainant issued it without the presence of the
representative, contrary to instruction. Id. Management subsequently sustained the charges against
Complainant and the EMS Line Manager issued Complainant a Letter of Suspension on May 18,
2015. Id. at 188-98.

On July 8, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of sex (male, sexual orientation) when on May 18, 2015, he was suspended
for 10 days effective May 31, 2015, through June 9, 2015. Following 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).

The final Agency decision concluded that Complainant failed to prove that the Agency subjected
him to discrimination as alleged. The Agency specifically found that it articulated legitimate,
nondiscriminatory reasons for issuing Complainant the Suspension, which Complainant did not
show were pretext for discrimination. The Agency noted the Chief of EMS decided to carry-out
the suspension after considering the nature of Complainant’s conduct based on Agency policy in
issuing discipline.

CONTENTIONS ON APPEAL

On appeal, Complainant, through his attorney, asserts that he only directed the patient back to his
room out of concern for the safety of the public considering the patient was drinking from the
public water fountain. Complainant argues that it is incomprehensible that the Agency would
discipline him in such a manner when he was simply ensuring public safety. Complainant further
states that he was disciplined for issuing his subordinate the suspension without union
representation even though the representative was not available at the time. Complainant contends
that he was not provided with any supervisory instruction on how to proceed in the event the union
representative was unavailable. Complainant maintains that the Assistant Chief learned of his
sexual orientation around May 2014 and the Service Line Manager received knowledge shortly
thereafter. Complainant states that soon after management learned of his sexual orientation, he
received the Proposed Suspension on April 17, 2015.

In response, the Agency requests that we affirm its final decision.
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STANDARD OF REVIEW

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”).

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); Pavelka v. Dep't of the Navy,
EEOC Request No. 05950351 (Dec. 14, 1995).

Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of
discrimination based on his sexual orientation, the Agency articulated legitimate,
nondiscriminatory reasons for suspending Complainant. The Agency found that Complainant
approached a patient in a loud manner, and issued his subordinate discipline without union
representation, as described in the April 17, 2015, Proposed Suspension.

The burden now shifts to Complainant to establish that the Agency’s nondiscriminatory reasons
were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant
contends that both the Assistant Chief and Service Line Manager issued him the suspension shortly
after learning of his sexual orientation. Complainant argues that it is incomprehensible that the
Agency would discipline him when he was simply ensuring the safety of the public. He also states
he was not given supervisory instruction on how to proceed in the event his subordinate’s union
representative was unavailable.
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Complainant maintains that the Assistant Chief learned of his sexual orientation around May 2014
and the Service Line Manger received knowledge shortly thereafter.

Notwithstanding Complainant’s contentions, we find that he has not established that the Agency’s
reasons for his suspension were pretext for discrimination based on his sexual orientation. In so
finding, we note that nearly a year had passed between the time Complainant alleges management
first became aware of his sexual orientation and his suspension. Moreover, Complainant does not
dispute that he confronted the patient in the manner described in the proposed suspension. While
Complainant argues that he was ensuring the safety of the public, we note that Complainant worked
as a Housekeeping Aide and was neither a nurse nor a doctor with medical expertise. The record
reflects that management felt that Complainant should have notified them instead of confronting
the patient in the way he did. Complainant also does not dispute that he issued his subordinate the
discipline without union representation, contrary to instruction. While Complainant may have felt
his 10-day suspension was rather harsh given the circumstances, there is simply no evidence that
management took the action against Complainant based on his sexual orientation. As Complainant
withdrew his request for a hearing, we do not have the benefit of an Administrative Judge’s
credibility determinations after a hearing. Therefore, we can only evaluate the facts based on the
weight of the evidence presented to us. In sum, we find that Complainant did not establish that the
Agency’s reasons for his suspension were pretextual.2

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 (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

2 In EEOC Petition No. 0320170017 (March 2, 2017), the Commission concurred with a Merit
Systems Protection Board’s (MSPB) decision finding that Complainant (Petitioner therein) did not
demonstrate that he was subjected to discrimination based on his sexual orientation when he was
removed from his position.
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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.

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.

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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 30, 2018
Date