EEOC Appeal 2020000300

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachariah W.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000300
Hearing No. 490-2018-00030X
Agency No. 200I-0614-2017101630
DECISION
On October 15, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s August 28, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Intermittent Nuclear Technologist, GS-11,
at the Agency’s Memphis VA Medical Center in Memphis, Tennessee.
On May 2, 2017, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American), sex (male/LGBT), age (over
40), and in reprisal for prior EEO activity (claim related to sexual harassment) 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.

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a. 	on December 21, 2016, he completed the majority of patient scans while another co-
worker was allowed to work in an administrative area generating reports and gaining
additional specialized experience with administrative work;
b. 	on December 23, 2016, he learned that he was not selected for the position of Nuclear
Medicine Technologist, GS-0601-11, under Vacancy Announcement Number RZ-16-
YMT-1814827-HT38-BU;
c. 	in January 2017, his intermittent work hours were cut from the previously agreed upon
20 hours per week (since 2015) to a total of only six (6) hours for the entire month; and
d. 	on August 10, 2017, he was informed he was ineligible for the position of Nuclear
Medicine Technologist, GS-0601-11, under Vacancy ID: 1984202.2
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ). 	Thereafter, the
Agency submitted a Motion for Decision Without a Hearing. 	Complainant responded to the
motion. 	On August 22, 2019, the AJ issued a decision by summary judgment in favor of the
Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision.
The instant 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). 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. 	In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
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. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus.
2 The record reflects that claim d was later amended to the instant formal complaint.

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Here, however, Complainant failed to establish such a dispute. Even construing any inferences
raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in
Complainant’s favor.
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.
During the relevant period, Complainant was an Intermittent Nuclear Technologist, GS-11 at the
Agency’s Memphis VA Medical Center in Memphis, Tennessee.
The AJ noted that intermittent employees are not full-time employees, and that they work part-
time. These intermittent employees work periodically or for a fluctuating portion of the full-time
work schedule. The intermittent employees work on a needed basis and at the discretion of the
department managerial staff.
The intermittent positions were created in the nuclear medicine department in lieu of a full-time
position. The Agency hired two intermittent employees to split 40 hours. Complainant worked
around 20 hours per week. 	Complainant asserted that he was promised 20 hours per week but
management denied promising a certain number of hours.
In February 2016, Complainant filed a claim of sexual harassment after a male co-worker made
what he believed was an inappropriate comment relating to his sexual orientation. Complainant
does not recall revealing his sexual orientation to his co-workers. 	Complainant’s sexual
harassment allegation was investigated and witnesses were questioned. He received notification
that the investigation closed but was not sure if anyone was disciplined.
In late 2016, the Agency advertised a permanent Nuclear Technologist position. Complainant and
a male co-worker (“Co-worker 1”) were deemed qualified for the subject position. Complainant
and Co-worker 1 were interviewed by a three-person panel. 	Complainant felt some of the
interview questions were vague and not related to day-to-day operations. 	Out of a possible
interview score of 250, Co-worker 1 received a score of 208 while Complainant received a score
of 128. Co-worker 1 was selected for the subject position.
The AJ noted that on November 9, 2016, Complainant’s supervisor sent an email to his staff asking
for volunteers to take on an extra work responsibilities to include calling patients to remind them
of their upcoming nuclear medicine appointments. Co-worker 1 volunteered but Complainant did
not.
On December 20, 2016, Complainant sent the supervisor an email stating “I will not be available
as often as I have in the past for coverage.” 	He further stated “I will give you notice of my
availability as we proceed.” The supervisor interpreted the email to mean that Complainant would
not be as available in the upcoming new year. He called Complainant to work in January 2017,
but he was not available. Complainant worked only six hours in January 2017.

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After a discussion with the Radiology Director and Administrative Officer, the supervisor decided
the intermittent hours were too sporadic, and that these sporadic hours affected the schedule of
patients because staff coverage was not guaranteed. 	Management decided to dissolve the
intermittent position and rely on full-time employees for staffing needs. 	This allowed for more
consistent patient scheduling and staff coverage. Consequently, Complainant was not called back
to work.
On July 20, 2017, the Agency announced another Nuclear Medicine Technologist vacancy. Two
different job announcements were generated for the subject position. One announcement targeted
internal employees of the Agency under Announcement Number 1984202, and the other targeted
all other U.S. citizens under Announcement Number 1984198. The record reflects that because
he was unsure of his employment status, Complainant applied to both announcements in an
abundance of caution. 	Complainant was notified that he was ineligible under Announcement
Number 1984202.
Complainant asserted that on December 21, 2016, he completed the majority of patient scans while
Co-worker 1 was allowed to work in an administrative area generating reports and gaining
additional specialized experience with administrative work. However, the supervisor stated that
on November 9, 2016, he sent out an email to his staff asking for volunteers to perform extra duties
“above and beyond direct clinical care. 	These duties are of a clerical nature, and not
administrative, including tasks such as calling patients and patient data entry.” He noted that Co-
worker 1 volunteered to perform extra duties while Complainant did not respond to his request.
With respect to Complainant’s allegation that in January 2017, his intermittent work hours were
cut from the previously agreed upon 20 hours per week to a total of only 6 hours for the entire
month, the supervisor acknowledged that the Intermittent Technologist position was removed
because it was not effective. Specifically, the supervisor stated that the subject position “was not
an efficient nor effective practice in consideration of departmental staffing needs to best care for
the veterans in Nuclear Medicine.” He further noted that in December 2016, Complainant notified
him that he would not be available for regular shift coverage in 2017. Furthermore, the supervisor
stated “unable to rely on a consistent schedule of shift coverage, the intermittent position has
become obsolete in its value to assist this department.”
Regarding Complainant’s allegation that on December 23, 2016, he learned that he was not
selected for the position of Nuclear Medicine Technologist, GS-0601-11, under Vacancy
Announcement Number RZ-16-YMT-1814827-HT38-BU, the Radiologist (male, under 40) stated
that he was part of the interview panel. He stated that following the interviews, the panel
recommended Co-worker 1 for the subject position because “his performance in performing his
duties as an intermittent employee were in all aspect superior to the complainant’s [performance]
including basic skills from starting IVs to processing images. 	Also, the complainant had no
experience with PET/CT whereas the selectee has special certification in PET/CT.”3
3 PET is an abbreviation for Positron Emission Tomography and CT is an abbreviation for
Computed Tomography.

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The Human Resources (HR) Specialist stated that Complainant contacted her after being informed
that he was ineligible for the position of Nuclear Medicine Technologist, GS-0601-11, under
Vacancy ID: 1984202. She stated that she told Complainant that he “was an intermittent employee
with the facility [and] he was not considered a permanent employee and that we had another
posting for US citizens to apply and I asked him if he did. He said he and I checked the system
and he did. I also verified with him that I had all the required documents. I explained the process
for that posting that it is targeted for the veterans first and work down to the nonveterans.”
In sum, after careful consideration of all Complainant’s allegations and the evidence of record,
there is adequate support the AJ’s determination that the responsible management officials clearly
articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare
assertions, Complainant has simply provided no evidence to support his claim that his treatment
was the result of his race, sexual orientation, age or prior protected activity. A case of
discriminatory hostile work environment is precluded based on our findings that Complainant
failed to establish that any of the actions taken by the Agency were motivated by his protected
bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.
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
September 14, 2020
Date