0120093524
07-09-2012
Carlos Fernandez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Carlos Fernandez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120093524
Hearing No. 570-2007-00656X
Agency No. HS-05-HQ-003782-00000
DECISION
Complainant timely filed an appeal from the Agency's July 20, 2009, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the EEOC Administrative Judge's (AJ) finding that Complainant failed to prove that he was not selected for a Border and Transportation Security Officer (BTS Officer) position because of his disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer at the Pearson International Airport in Toronto, Canada. On November 14, 2004, the Agency issued a job announcement for the position of BTS Officer, GS-1801-12/13/14, in the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) division. Complainant applied for the position in November 2004. The Director of Implementation for US-VISIT (Director) was the selecting official for the position. Three officials were appointed by the Director to the interview and screening panel for the position.
On December 6, 2004, a Merit Promotion Plan Selection Register was sent to the Director, which listed the best-qualified candidates for the BTS Officer position. Complainant was on the best-qualified list. On December 28, 2004, the Agency selected three applicants for the position, but only one applicant (non-disabled) accepted the offer. The Director asked the three panelists to recommend additional candidates from those initially refereed on the original selection registers for the position. The panelists identified Complainant as one of the additional candidates for a BTS Officer position. On February 2, 2005, two panelists (S1 and S2) spoke with Complainant on the telephone about the position. Additionally, on March 14, 2005, three panelists (S1, S2, and S3) interviewed Complainant in-person for the position. The same questions were posed by the panel members to all interviewees. The Director did not select anyone for the BTS Officer position from the second selection round, and the selection register expired.
On November 23, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when the Agency failed to select him for a position as BTS Officer.
The AJ's Decision
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 AJ. Complainant timely requested a hearing, which the AJ held on April 29, 2009. On July 6, 2009, the AJ issued a decision in which he found that Complainant failed to prove that he was subjected to disability discrimination. Specifically, the AJ found that Complainant failed to establish a prima facie case of disability discrimination because there was no competent evidence that any Agency official involved in the selection was aware of Complainant's disability. The AJ further found that the Agency provided a legitimate, non-discriminatory reason for not selecting Complainant when it explained that Complainant was rejected for the position because he lacked experience in a headquarters environment, lacked program management skills, criticized management during the interview, and interviewed poorly. The AJ further noted that the Agency did not choose anyone for the position from the second selection register. The AJ concluded that Complainant failed to show that the Agency's explanations were pretext for unlawful discrimination. The Agency subsequently issued a final order fully adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly found that he did not prove he was subjected to disability discrimination. Complainant argues that the Agency's claim that he did not have enough program and project management experience is not credible because the vacancy announcement for the position did not list those qualifications, and he was deemed qualified for an interview. Complainant further maintains that the Agency failed to give specific reasons why it thought his comments at the hearing were unprofessional. Complainant also maintains that the Agency knew he was disabled because his supervisor told one of the founders of the US-VISIT program that Complainant was on light duty. The Agency does not raise any arguments on appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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).
Once complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716 (1983).
As an initial matter, we note that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2004, the Commission would use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability." Here, however, for purposes of analysis, we assume without so finding that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, and established a prima facie case of disability discrimination.
Complainant maintains that the Agency's claim that he did not have enough program and project management experience is not credible because the vacancy announcement for the position did not list those qualifications, and he was deemed qualified for an interview. However, the vacancy announcement for the position indicates program management skills are crucial for the position. For instance, the BTS vacancy announcement stated that a BTS Officer "plans and implements special project program initiatives involving law enforcement, visa issuances, border management and security operations" and "advises supervisors and managers on the development and dissemination of program guidance to field component." Report of Investigation (ROI), Exhibit F2, p. 1. Complainant also argues that the Agency's asserted reasons are not worthy of belief because the Agency deemed him qualified for an interview. However, an agency may use more rigorous criteria for its ultimate selections than it uses for threshold determinations of eligibility.
Complainant further maintains that the Agency failed to give specific reasons why it thought his comments at the hearing were unprofessional. Although S3 testified generally during the hearing that Complainant demeaned his supervisors and expressed dissatisfaction with management at his interview, S3 was sufficiently specific in her affidavit statement. For instance, in her affidavit statement, S3 stated that, during the interview, Complainant "was extremely critical of his management, and I was very surprised at his utter lack of discretion in making statements like how poorly run his workplace was and that he was the only person at his workplace that worked or knew anything." Exhibit F1f, p. 3.
Finally, we note that an employer has discretion to choose among equally-qualified candidates, so long as the selection - or this case, the absence of a selection - is not based on unlawful criteria. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Burdine, 450 U.S. at 259. Consequently, we find that the record contains substantial evidence that supports the AJ's determination that Complainant failed to prove that was he was subjected to unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 9, 2012
Date
2
0120093524
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093524