EEOC Appeal 2020001649

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rhea H.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2020001649
Agency No. 2003-0519-2018105887
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts the December
19, 2019 appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 22, 2019 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.
BACKGROUND
During the period at issue, Complainant worked as a Training Sergeant and Coordinator at the
Agency’s George H. O’Brien, Jr. Veterans Affairs Medical Center (VAMC) in Big Spring, Texas.
On December 3, 2018, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on race/national origin (Hispanic/Puerto Rican) and
in reprisal for engaging in protected activity when:
1. 	The Chief of Police failed to select Complainant for the position of Lieutenant, Vacancy
Announcement No. AMP10245512-18-NMI (Vacancy);
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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2. 	The Deputy Chief of Police placed Complainant on administrative duty, and removed him
from law enforcement duties; 2
3. 	Complainant was informed that he would be scheduled for a Fitness-for-Duty Examination
(FFDE);
4. 	Complainant’s scheduled duty hours were changed; and
5. 	Complainant received an “Unsatisfactory” rating on his Fiscal Year (FY) 2018 annual
performance evaluation.
After its investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of the right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). In accordance with Complainant’s request, 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
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 a complainant to prevail, he
or she must first establish a prima facie case 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, non-discriminatory 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. 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
2 Complainant alleged he was retaliated against for protesting to management immediately after
he learned he was not selected for the Lieutenant position in claim one. He initially sought EEO
counseling on this matter on August 22, 2018. He alleges unlawful retaliation for these actions in
the remaining claims in his complaint.

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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).
Claim 1
Here, Agency management articulated legitimate, nondiscriminatory reasons for not selecting
Complainant for the Vacancy.
The Deputy Chief’s testimony reflects that the Agency conducted Performance-Based Interviews
that used scoring sheets that were transferred to a scoring matrix. The Deputy Chief also testified
that the highest scoring individual was recommended by the three-person interview panel and the
final selection was made by the Chief of Police (Chief) (white). More specifically, the Deputy
Chief stated that Complainant was outscored by the individual selected (Selectee) in 6 out of 10
categories. The Deputy Chief stated that the scores were as follows: Supervisory Experience:
Complainant – 9, Selectee – 12; Ability to distribute workload, timely accomplishments:
Complainant – 9, Selectee – 5; Organizational Stewardship: Complainant – 6, Selectee – 11;
Flexibility/Adaptability: Complainant – 9, Selectee 14; Interpersonal Effectiveness: Complainant
– 8, Selectee – 14; and Personal Mastery: Complainant – 11, Selectee – 12.
The Chief testified that the next step of the process was his own analysis of applicant resumes,
answers to the application questions, past work performance, and interview results. The Chief
stated that he tallied the scores of his assessment and the top applicant (non-Hispanic) was selected
and this information was forwarded to human resources. The Agency stated that Complainant
ranked third, and therefore, he was not the individual recommended for the position and ultimately
selected.
Complainant rejects the Agency’s rationale arguing that the individual selected for the Vacancy
was not qualified. Complainant states that it was obvious that the selecting officials did not want
to lose him as a Training Sergeant. Complainant also states that he met the requisites for the
position and felt that he was not selected because he is Hispanic. Complainant further asserts that
he was previously involved in the selection process for another position where the third-ranking
individual, who is white, was selected over the first-ranking Hispanic person.
We find that Complainant failed to proffer adequate evidence to show that the Agency’s articulated
reasons were a pretext for discrimination. Complainant has not shown that the alleged disparities
in qualifications between him and the selectee are “of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over
[him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see
also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). 	Moreover, Complainant has
failed to establish an adequate connection between the non-selection at issue and the earlier
selection decision he referenced.

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Claim 2
The Agency denies Complainant’s contention that he was placed on administrative duty. The
Agency stated that an individual is placed in administrative duty status only after their police
authority has been suspended, and the individual’s badge and credentials have been taken by
order/authority of the Facility Director. The Deputy Chief testified that the determination was
made to ask Complainant to come to work without arming because Complainant said that he “was
not in his right state of mind” to be doing police duties. The Deputy Chief stated that he notified
Complainant that he was not suspended. The Deputy Chief also testified that the decision was
made by the Chief to request Complainant to disarm.
Complainant avers that he was informed via text message on August 27, 2018 by the Deputy Chief
(Hispanic) to come to work in civilian clothes and his keys to his weapon locker and access to the
facility were taken away. Complainant asserts that the Deputy Chief offered to let Complainant
take leave, which he did for a week. Complainant states that three weeks later, the Deputy Chief
asked Complainant to return to work. Complainant’s account of what occurred is largely in-line
with what the Agency articulated. While Complainant was asked to not “arm up,” there is no
evidence in the record that he was placed on administrative duty because of the raised bases.
Claim 3
The Agency again denies Complainant’s assertion, this time with Claim 3, that Complainant was
required to have an FFDE. Complainant argues that the wrong individuals were interviewed
regarding the FFDE, and other individuals would have confirmed his account. However,
Complainant does not provide any evidence that he was selected for FFDE. Additionally, the
record does not support Complainant’s account that he was selected for FFDE.
Claim 4
With regard to Claim 4, the Agency has asserted that it gave Complainant two-week notice of the
schedule change, as required by the collective bargaining agreement. Complainant argues that the
Agency did not provide him with two-week notice and provides a copy of the schedules as proof.
However, these submitted schedules are not reflective of whether or not the Agency provided
Complainant two-week notice for his schedule change. Further, the record does not support a
contention that the Agency’s decision to change Complainant’s work schedule was motivated by
discrimination. 	Complainant 	does 	not 	provide 	evidence 	that 	the 	Agency’s 	legitimate,
nondiscriminatory rationale was pretext for discrimination.

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Claim 5
The Deputy Chief testified and explained each element of Complainant’s performance appraisal.
The Deputy Chief testified that Complainant was fully-successful in every other critical element,
except in Training and Tactics. The Deputy Chief explained, in detail, Complainant’s deficiencies
leading to the unacceptable appraisal rating in the Training and Tactics critical element. 	He noted
that Complainant failed to update training records despite numerous reminders, he had provided
inadequate and poorly planned training, and that in one instance, offered to “sign off” on an
employee’s training requirements even though the requirements were not completed.
In response, Complainant questions, if the element of “Training and Tactics” was unsatisfactory,
why the Deputy Chief did not place Complainant on a performance improvement plan (PIP).
Complainant argues that the Deputy Chief instructed him to falsify records and that the Deputy
Chief violated numerous policies. Complainant argues that officers, Sergeants, and Lieutenants
could be interviewed and would state Complainant’s hard work, training, and innovative tactics.
However, Complainant does not show by a preponderance of the evidence that the Agency’s
rationale was pretext for discrimination against him. Instead, Complainant alleges misconduct by
the Deputy Chief, seemingly unrelated to the instant matter.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination or unlawful retaliation occurred in violation of Title VII.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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).

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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, 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. 	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.

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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
October 15, 2020
Date