0120160979
06-15-2018
Charley L.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charley L.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120160979
Agency No. HHSNIHOD03815
DECISION
On February 1, 2016, 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 December 31, 2015, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly found that Complainant was not subject to discrimination on the bases of national origin (Indian) when on January 22, 2015, he was informed that he was ineligible for the position of Pharmacist, GS-0660-14, advertised under vacancy announcement NIH-NCID-DC-15-1247731.
BACKGROUND
Complainant applied for a Pharmacist position at the Agency's National Cancer Institute in Bethesda, Maryland advertised under vacancy announcement NIH-NCl-DH-15-1247731. On December 5, 2014, Complainant received an email notification from the Office of Personnel Management (OPM) stating that he was ineligible for this position since his application did not show that he met the minimum training or education requirements for the specialty and grade. On, or around, December 17, 2014, he contacted the hiring manger, and requested information on why he was considered ineligible for the vacancy. On December 23, 2014, the hiring manager responded by email and informed Complainant that he did not meet the minimum educational qualifications because Complainant's educational institution was not listed among those accredited by the Accreditation Council for Pharmacy Education (ACPE).
Complainant subsequently emailed the Human Resources (HR) Specialist who was managing the vacancy, and she advised that after consulting with staffing experts, OPM, and the NIH Delegate Examining Unit about the interpretation of the Physicist Qualification Standards, they concluded that all pharmacy school graduates must have attended a school recognized by the ACPE. Complainant was advised that the ACPE standards superseded all foreign education equivalency statements in the vacancy.
On May 22, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated above. 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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission review the Agency's FAD and conduct a supplemental investigation into the allegations of discrimination. Complainant reiterates his argument that the Agency has been using its accreditation requirements to discriminate against applicants based on their national origin.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of national origin, record evidence supports the FAD's conclusion that he did not show that the Agency's reasons for not selecting him were pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for the non-selection, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
Specifically, the record reflects that attendance at an educational institution that was accredited by the ACPE was a requirement for the position. While there was language in the announcement regarding foreign education equivalency, the overriding consideration for referring applicants for hiring was attendance at an ACPE accredited institution. We note that each job series has standards set by OPM to be used across the federal government. Within the pharmacy job series there is a requirement for the applicant's educational institution to have been accredited by the ACPE. The record reflects that no applicant who attended an education institution that was not recognized by ACPE was found eligible for further consideration for the position, regardless of whether the institution was inside or outside of the United States.
In an attempt to establish pretext, Complainant asserts that only one institution outside the United States has been accredited by ACPE, and that this requirement is pretext for discriminating against applicants based on their national origin. Complainant's argument of pretext lacks merit. The vacancy announcement required that applicant's educational institutions be accredited by ACPE. Complainant's school was not accredited by ACPE. Unlike, Complainant we do not find a connection between this requirement and his national origin. For example, we find that anyone who graduated from Complainant's institution would have been treated the same way regardless of their national origin. Additionally, Complainant has not demonstrated that any individuals who did not meet this requirement were referred for further consideration in hiring process. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find there is no persuasive evidence of a discriminatory motivation in the instant matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly held that Complainant did not establish that he was discriminated against based on national origin when he was not selected for the Pharmacist position at issue.
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.
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
_6/15/18_________________
Date
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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