0120121549
05-06-2014
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120121549
Agency No. FSA-2011-00511
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 12, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Senior Loan Officer, GS-13, at the Agency's Deputy Administrator for Farm Loan Programs, Direct Loan Branch in Washington, D.C.
The record reflects that Complainant stated that in April 2010, he was diagnosed with auto-immune kidney disease. Complainant stated although he is able to complete his work, the disease curtails what he is able to eat, tires him and makes him more susceptible to colds and other infections.
On June 30, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of disability when:
1. on February 11, 2011, he learned he was not selected and/or his application was not considered for the GS-14/15 Director of Loan Servicing and Property Management Division (LSPMD) position advertised via Vacancy Announcement Number UK397101LMB; and
2. on February 11, 2011, he learned that his December 16, 2010 request for a reasonable accommodation to assist him in applying for the position had not been granted.
After the investigation of the claim, 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 (AJ). In accordance with Complainant's request, the Agency issued a final decision on January 12, 2012, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant did not establish a prima facie disability discrimination. The Agency further found that assuming arguendo Complainant established a prima facie case of disability discrimination,1 Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
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, he must first establish a prima facie 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. 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 on the basis of 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 with respect to the subject claim. Regarding claim 1, the Human Resources (HR) Specialist stated that during the relevant period, she was the contact person for the vacancy announcement of the Director of Loan Servicing and Property Management Division position. Specifically, the HR Specialist stated that she was responsible for reviewing the applicants' application packages, was part of the rating panel, and prepared the certificate of eligibles. The HR Specialist stated "once we reviewed the applicants, we determine who is qualified and those applicants are then asked to submit an Accomplishment Record. Eligibility is determined based on the specialized experience outlined in the Vacancy Announcement and rated based on the specialized experience and Position Description. Applicants complete the online questionnaire for the Vacancy Announcement. The applicant's completed online questionnaire score is combined with their qualifications to determine who goes on to the next step of the selection process which was to submit an Accomplishment Record."
The HR Specialist stated that nine applicants, including Complainant, were asked to submit the Accomplishment Record by a December 6, 2010 deadline. The HR Specialist stated that the letter requesting the Accomplishment Records "were sent to the applicants on Monday December 6, 2010, requesting they be completed and returned by Thursday December 9, 2010." The HR Specialist further stated that all of the applicants "had the exact same letter, exact same time frame. They were all sent by email."
The HR Specialist stated that a certificate of eligible applicants was then sent to the selecting official for consideration "after the Accomplishment Records were submitted and reviewed. Complainant's name was not referred on the Certificate of Eligibles. There were interviews of the candidates, and then the selection was made." As Complainant did not submit his Accomplishment Record by the due date, his name was not among those forwarded to the selecting official.
Complainant stated that on December 6, 2010, he went to see his doctor and was sent to the emergency room with symptoms of congestive heart failure which was related to his kidney disease. Complainant further stated that given his medical condition, he was admitted to the hospital on December 6, 2010 and was not released until December 11, 2010.
Complainant stated that during the relevant period, the HR Specialist sent an email to the qualified applicants "including appellant, attaching a letter that requested the mandatory supplemental essay for the Supervisory Loan Specialist position" with a December 9, 2010 deadline date. Complainant stated that he did not receive the HR Specialist's email concerning the Accomplishment Record essay until he returned to work on December 13, 2010. Complainant stated that he then sent an email to the HR Specialist requesting an extension to complete the Accomplishment Record based on his recent hospitalization. Complainant stated that the HR Specialist "did not reply to [his] reasonable accommodation request, so [Complainant] assumed that it was acceptable for him to submit his essay by close of business on Thursday, December 16, 2010."
Complainant argued that he was discriminated based on his disability because other "non-disabled" applicants were granted extensions to submit their Accomplishment Records.
The record reflects that several applicants had requested extensions for various reasons. The HR Specialist confirmed that on December 9, 2011, one applicant made a request for an extension "stating that she was out of the office the day of the request and if she could be given a 1-day extension to turn in her documents. The approval was given that it had to be completed by Friday December 10, 2010. Because of the Christmas Holiday and the need to fill the vacancy, the Accomplishment Records had a deadline for completion (December 9, 2011) and had to be turned in so that the information could be complied and forwarded to the panel members. Most of the panel members went on vacation for the Holidays, so the information had to be to them before that time."
Further, the HR Specialist stated "the difference is that [Complainant] made his request after the closing date (deadline of the accomplishment record) and the other [applicant's] request was made before the closing date. Once it was closed, it was closed. The letter that was sent stated 'failure to respond by this date will result in your ineligibility for this position.'" The HR Specialist stated that during the relevant period, she was not aware of Complainant's disability.
Regarding claim 2, the HR Specialist stated that Complainant did not request a reasonable accommodation to assistant him in applying for the subject position and "his request for an extension was not approved." Specifically, the HR Specialist stated "at the time the request for an extension was received, the due date (December 9, 2011) for the Accomplishment Record to be submitted had already expired."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the proffered reasons for management's actions were a pretext for unlawful discrimination.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would case an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Complainant has not shown that the Agency wrongfully denied him reasonable accommodation. First, the record reflects that Complainant did not request an accommodation to assist him in applying for the Director of Loan Servicing and Property Management Division position. Second, to the extent that an accommodation request can be construed as merely an extension of the period in which to timely submit a supplemental essay, we determine that such a matter is inter-related to the matter fully discussed above in claim 1, wherein we find that the Agency had legitimate non-discriminatory reasons for its actions.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 (November 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
May 6, 2014
__________________
Date
1 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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