EEOC Appeal 2020001328

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Willie P.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001328
Agency No. 200I-0546-2017102328
DECISION
On November 27, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 5, 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 an Advanced Medical Support Assistant
(AMSA) at the Agency’s Key West Community-Based Outpatient Clinic (CBOC), Miami VA
Healthcare System in Key West, Florida.2
On June 30, 2017, Complainant filed an EEO complaint alleging the Agency unlawfully retaliated
against him for prior EEO activity (Agency Complaint No. 2001-0546-2016103851)) when:
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 record reflects that Complainant was terminated from Agency employment effective August
7, 2017.

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1. 	on February 1, 2017, Complainant was informed that he was responsible for scheduling
and cancelling clinics for the Mental Health Primary Care physicians which was not
his job;
2. 	on February 7, 2017, Complainant was informed that he was responsible for scheduling
patients in the Physical Therapy clinics, which was also not his job because he is not
assigned to the Physical Therapy clinics;
3. 	on March 1, 2017, Complainant was issued a Proposed Seven (7) Calendar Days
Suspension;
4. 	on March 21, 2017, two Navy Security Personnel members were used to “humiliate”
and “intimidate” Complainant when they asked him in front of patients and staff if he
was supposed to be on the property due to his pending suspension; and
5. 	on March 31, 2017, Complainant was notified that a decision was made to suspend him
for 7 calendar days, effective April 9 - 15, 2017.
After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). 	On or about June 12, 2019, Complainant
served his responses to the Agency’s Request for Admissions but failed to respond to the
interrogatories and the document production requests served by the Agency. The Agency asserted
that it made a good faith effort to resolve the discovery the dispute before filing its Motion to
Compel on June 25, 2019.
On or about June 28, 2019, the AJ granted the Agency’s Motion to Compel and ordered
Complainant to respond fully and completely to the remaining discovery served. 	Complainant
was given fifteen days from the date of the order in which to comply. 	The AJ again notified
Complainant that failure to follow her orders “will mean the imposition of sanctions” and that the
sanction to be imposed for any further failure to follow AJ orders would be dismissal of the
Complainant’s claim from the hearing process.
Thereafter, the Agency filed its Motion for Sanctions noting that Complainant failed to comply
with the AJ’s June 28, 2019 order. Complainant did not file a response to the Agency’s motion.
The AJ issued an Order Granting the Agency’s Motion for Sanctions finding that Complainant
failed to follow her orders and dismissed Complainant’s hearing request. 	Consequently, the
Agency issued the issued the instant final decision based on the evidence developed during its
investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed.

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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 complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, 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 based on 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
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).
The evidence shows that in approximately May 2016 Complainant sought EEO counseling and
filed an informal complaint against the supervisor involved in the instant complaint concerning
time and attendance issues. 	It appears he did not later file a formal complaint on the matter.
However, the Agency does not dispute that the supervisor was aware of this activity. Complainant
alleges the actions addressed in the instant complaint were in retaliation for this previous EEO
activity against the supervisor.
However, responsible management officials rebutted any initial inference of retaliatory motivation
by articulating legitimate, nondiscriminatory reasons for its actions, as more fully discussed below.
Regarding claim 1, Complainant asserted that on February 1, 2017, Complainant was informed
that he was responsible for scheduling and cancelling clinics for the Mental Health Primary Care
physicians which “is not [his] job.”
The Administrative Officer was Complainant’s supervisor until the Supervisory Medical Support
Assistant (Supervisory MSA) became Complainant’s supervisor on or around February 26, 2017.
He stated that Complainant was placed on notice that he works in the capacity of a Patient Aligned
Care Team (PACT) clerk and “they are supposed to handle all scheduling for their clinics.

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That is a national requirement, not a VA Miami Requirement. He refused to schedule any patients
who were not in his clinic, and there are only two clerks there.”
The former supervisor stated that he had to drive down to the Agency’s Key West Community-
Based Outpatient Clinic (CBOC) from Miami three times to give Complainant’s “written proof
and try to get him to acknowledge in writing that he received proof of his duties. Complainant
never would sign nor acknowledge the proof. Always stating ‘I need my Union Rep to view this
before I sign.’”
The Chief of Medical Administrative Service (the Chief) stated that Complainant refused to
perform this assignment at the time it was given to him by his Supervisory MSA, also his new
supervisor. She stated that Complainant’s assignment was left in his official VA mailbox and was
followed up in writing to Complainant. The Chief further stated that the outcome “was multiple
meetings with Complainant, his Union representative, a Mediator, and me. Complainant continued
to refuse the assignment, and disciplinary action was necessary.”
The Chief maintained that she reinforced the assignment to Complainant by the new supervisor
because his functional statement clearly defined the duties of an AMSA. She also stated that she
refused Complainant’s suggestion of working overtime to complete this assignment because the
Key West CBOC is a small facility and “the workload allowed for time during the workday for
Complainant to complete this assignment.”
Regarding claim 2, Complainant alleged that on February 7, 2017, Complainant was informed that
he was responsible for scheduling patients in the Physical Therapy clinics, which “is not [his] job”
because he is not assigned to the Physical Therapy clinic.
The Chief stated while the Supervisory MSA was in Miami for training, she emailed Complainant
an email instructing him “to contact patients due to Physical Therapy clinic cancellation. 	The
information was sent via email due to the distance, I work out of Miami VA, and Complainant was
at the Key West Clinic.” She noted that Complainant again refused to perform his assignment as
instructed and “the outcome was insubordination.”
Regarding claim 3, Complainant alleged that on March 1, 2017, he was issued a Proposed Seven
(7) Calendar Days Suspension. 	The Supervisory MSA stated that Complainant was verbally
counseled due to his refusal to open the clinic and assist patients. She noted that Complainant left
several patients outside waiting to get their lab work completed because he refused to open the
clinic door until 8:00 a.m. when his shift was over. 	Furthermore, the supervisor stated that
Complainant would call, stating he would not report to work at the last minute, resulting in another
staff member having to come in to ensure there was coverage.
Regarding claim 4, Complainant claimed that on March 21, 2017, two Navy Security Personnel
members were used to “humiliate” and “intimidate” Complainant when they asked him in front of
patients and staff if Complainant was supposed to be on the property due to his pending suspension.

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The Supervisory MSA explained that according to protocol, “in the event of an adverse reaction
by Complainant, on March 21, 2017, I did alert the U.S. Navy to have the Navy Corpsman Petty
Officer of the Week to be nearby, because I was issuing Complainant a proposed negative
personnel action that day.” 	She further stated that at the end of the day, she notified the
Commander that Complainant had been issued a proposed suspension and “would let him know if
it was decided to suspend Complainant. Other than this notification, no one outside the VA chain
of command was informed by anyone of the proposed suspension.”
Regarding claim 5, Complainant asserted that on March 31, 2017, Complainant was notified that
a decision was made to suspend him for 7 calendar days, effective April 9 - 15, 2017.
The Chief was the deciding official to suspend Complainant for 7 calendar days for refusal to carry
out the proper order from the supervisor having the responsibility for the work of the employee.
The record contains a copy of the March 1, 2017 Proposed 7-Day Suspension in which the Chief
placed Complainant on notice that on February 1 and 3, 2017, his supervisor sent letters to him
instructing him to contact patients on the Psychiatry cancellation list to reschedule their
appointments and to let the supervisor know when tasks were completed. 	The Chief stated,
however, the supervisor informed her on February 13, 2017 that the letters were still in
Complainant’s in-box and he had not called any of the patients.
The Chief also noted that on January 31, 2017, Complainant was given a counseling letter from
the supervisor of Ambulatory Care that a number of patients were booked on Friday 15, 2017 for
the next day “as an over book at 8:00 a.m. This was done even though you had been instructed
not to do so.” 	The Chief stated that she considered Complainant’s reprimand dated October 4,
2018 for sleeping on duty, failure to carry out his duties of his position, and failure to provide
medical documentation while on sick leave prior to her decision to suspend Complainant for 7
calendar days.
Based on these explanations proffered by the responsible management officials for the disputed
actions, the burden of proof shifts to Complainant. 	However, beyond his bare assertions,
Complainant failed to produce evidence to prove, by a preponderance of the evidence, that Agency
management’s proffered explanation for its actions as detailed above, was a pretext designed to
mask unlawful retaliation for his prior EEO activity.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that unlawful retaliation occurred.

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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
September 17, 2020
Date