EEOC Appeal 2019006013

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kylee B.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2019006013
Agency No. 200P-0612-2018106247
DECISION
On September 30, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 30, 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 Assistant Chief of Surgery at the Agency’s
Northern California Health Care System in Mather, California.
On December 25, 2018, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against her based on national origin (Hispanic), sex (female), and
in reprisal for prior EEO activity (assisting other employees with their EEO complaints) when, on
August 20, 2018, the Associate Director removed her from her assignment as Site Manager at the
Outpatient Clinic.
After the investigation of the formal complaint, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge. In accordance with Complainant’s request, the Agency issued a final
decision on August 30, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
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.

2019006013	2
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 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
The Associate Director (American, male) explained complainant had been serving in a collateral
capacity as the Site Manager for the Martinez Outpatient Clinic since the early 1990s, while still
also performing clinical duties as a physician as the Assistant Chief of the Surgery Service for the
East Bay Division. He asserted that Complainant “has never been under a formal position
description for the Site Manager role, nor has she been compensated for this responsibility.”
The Associate Director averred that his determination to remove Complainant as the acting Site
Manager was a business decision to improve efficiency by allowing practicing physicians, like
Complainant, to focus on clinic work rather than administrative functions. He noted that having
Complainant perform the administrative duties was redundant, because the Martinez campus also
had senior level executives. He also noted that the change in assignment on August 20, 2018
“clearly delineates that the complainant’s salary or formal position as Assistant Chief of Surgery
will not be impacted. The duties of a site manager position are administrative in nature and do not
require a physician.

2019006013	3
These administrative duties are those which are typically managed by the Associate Director’s
office for the health care system, to include space management and overall day-to-day operations
of the health care system.” Further, the Associate Director asserted that by removing the
redundancies, it would allow Complainant to better improve the quality of care for veterans by
allowing her to focus on her clinical duties.
The record contains a copy of the August 20, 2018 Change in Assignment memorandum, in which
the Associate Director placed Complainant on notice of a change in her assignment as the Site
Manager and “this change will take effectively immediately on the date of this memorandum. You
will remain in your role as Assistant Chief of Surgery…the decision to change your site
management responsibilities was made after careful consideration of the role of the senior
executive on the Martinez campus.”
Beyond her bare assertions, Complainant failed to produce evidence to prove, by a preponderance
of the evidence, that the Associate Director’s proffered explanation for the change in assignment
was a pretext designed to mask discrimination. She alleges other physicians were placed in
administrative roles. However, management testimony indicated these comparators were not
similarly situated because they did not also have clinical duties like Complainant. We also note
that the Associate Director’s explanation is bolstered by the fact that the Agency did not appoint
someone else as Site Manager of the clinic after removing Complainant.
CONCLUSION
We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.
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.

2019006013	4
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.
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.

2019006013	5
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 16, 2020
Date