EEOC Appeal 2020001833

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Edmond F.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001833
Hearing No. 520201700234X
Agency No. 200HVI032015101458
DECISION
On December 16, 2019, Complainant 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
November 18, 2019 final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Chief of
Engineering, GS-13-801, at the Agency’s New York Harbor Healthcare System, in New York,
New York.
On April 9, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian), sex (male), and religion (Jewish) regarding the
Agency’s delays or failure to post or fill Chief of Engineering vacancies.2
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 complaint contained five other claims, which the Agency procedurally dismissed. EEOC
affirmed the dismissal of these other claims in EEOC Appeal No. 0120152528 (April 22, 2016),
request for reconsideration denied, EEOC Request No. 0520160345 (July 19, 2016).

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The investigative record for the accepted claim shows Complainant was the Assistant Chief of
Engineering at the Agency’s New York Harbor Healthcare System in Brooklyn, New York.
Complainant identified his race as Caucasian, his religion as Jewish and his sex as male.
Until September 2013, Complainant worked at the Agency’s facility in Manhattan. He named the
SES Director at the Manhattan facility (Caucasian, Catholic and female) (“RMO1”) as responsible
for the alleged discrimination. 	He also named the Associate Director for Finance Information
Management in Manhattan (Caucasian, religion unknown, female) (“RMO2”).
The Agency posted several vacancy announcements for the position of Chief of Engineering in
August 2013 (Vacancy Announcement 940005), January 2014 (Vacancy Announcement 1023901)
and January 2016 (Vacancy Announcement 1596223). Complainant did not apply for two of these
positions. Neither RMO1 or RMO2 were the selecting officials.
On May 31, 2013, a subordinate of Complainant had filed an EEO complaint against him alleging
sex harassment. The same subordinate employee (African-American female, Christian) made
additional claims against Complainant on September 25, 2014 and January 20, 2015. In addition
to an EEO investigation, the VA police conducted an investigation into her claims during 2013 to
December 2014. Complainant stated that he was innocent of the charges made against him.
Complainant averred that his race, religion, and sex were factors because management did not
want to give the position to a Jewish man or someone accused of sex harassment. He also noted
that 15% of New Yorkers are Jewish, but the Agency had not hired anyone who was Jewish for
the position of Chief of Engineering.
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). Complainant timely requested a hearing.
The AJ assigned to the case issued a decision by summary judgment in favor of the Agency on
November 13, 2019. The AJ found Complainant offered no facts to demonstrate the timing of the
vacancy openings or the investigations into the harassment charges against him resulted from
antisemitic, racial or gender bias. The AJ noted that the evidence showed that any delay in posting
the vacancies was due to damage caused to the facility by Hurricane Sandy and that the eventual
selectees were men and Caucasian. The AJ found that, even if Complainant established that he
suffered an adverse employment action, he has not shown that it was based on his protected classes
or that others outside his protected classes were treated more favorably.
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).

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An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor
of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.
To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. While Complainant
has, in a very general sense, asserted that facts are in dispute, he has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that indicates
such a dispute. For the reasons discussed below, we find that, even construing any inferences raised
by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his
favor.
A claim of disparate treatment based on indirect evidence is usually examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	For
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. 	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. Texas
Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, Complainant claimed the Agency failed to timely post the vacancy announcements for Chief
of Engineer position because of his race, sex, or religion. Complainant claimed that the Agency’s
failure or delay to post vacancy announcements coincided with claims of discrimination being
brought against him. Complainant states that, in December of 2014, he realized that the
investigations against him happened when the Chief Engineer positions were posted. Thus, while
not altogether clear, he seems to be implying that the there was an attempt to tie the investigation
against him to the selection process for the Chief of Engineering position so that Complainant
would not be selected.

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Contrary to Complainant’s claims that the Agency did not post the announcements because of
Complainant’s race, sex or religion, the record shows that the Agency did, in fact, post three
vacancy announcements for the Chief’s position. Complainant applied for only one of the three
vacancies that were posted, but he was not selected. It was undisputed that, at the time that the
Agency posted the initial vacancy for the engineering position, Complainant had been named in a
sexual harassment complaint. Although he contended that the employee’s complaints against him
were unjust, Complainant also acknowledged that, “I was being investigated by the VA police and
by EEO.” Complainant stated his belief that “the VA management did not want the Chief of the
service to be someone that was accused of sexual harassment by a black female Christian. It does
not look good, regardless if it true or not.” Therefore, Complainant himself has offered a reason
why he might not have been selected for the position rather than as a result of his race, sex or
religion. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor based on the uncontested facts
presented here.
Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ
correctly determined that the entry of summary judgment in favor of the Agency was appropriate.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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
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.

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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. 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 18, 2020
Date