0720160004
08-16-2016
Delphia F.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Delphia F.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0720160004
Hearing No. 410-2012-00026X
Agency No. 9R1M11047
DECISION
Following its September 24, 2015 final order, the Agency filed a timely appeal which the Equal Employment Opportunity Commission (EEOC or Commission) accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's finding of a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Agency also requests that the Commission affirm its decision implementing the AJ's finding of no discrimination as to the remaining claims of discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had worked as a Supply Chain Analyst in the Supply Chain Management Squadron at Robins Air Force Base in Georgia.
On January 2, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability, age (49), and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. on November 17, 2010, she was not selected for an Education Services Specialist, GS-1740-11, Announcement Number 10AUG785976; and
2. on November 17, 2010, she was not selected for a School Liaison Specialist, GS-301-11, Announcement Number 10AUG785827.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge ("AJ2"). Complainant timely requested a hearing and AJ2 held a hearing on March 19 and 20, 2015, and issued a decision on August 11, 2015.
With regard to the two non-selections, AJ2 determined that Complainant failed to establish that she was subjected to discrimination when she was not selected for either position. As for claim (1), AJ2 noted that Complainant did not provide sufficient information on her application for the Agency to find that she met the qualifications of the position. Therefore, Complainant was not referred for consideration. As for claim (2), AJ2 determined that the Agency provided legitimate, nondiscriminatory reasons for choosing the selectee (Selectee). The responsible management officials testified that the Selectee had far more experience compared to all of the candidates for the position including Complainant. AJ2 then determined that Complainant failed to establish that the Agency's reasons for not selecting her for either position were pretext for discrimination. Therefore, AJ2 concluded that Complainant failed to establish that she was subjected to discrimination with respect to the claims raised in the instant complaint.
AJ2, however, went on to note that Complainant raised an additional claim that she should have been afforded priority consideration for the two positions. Complainant had a previous case before another EEOC Administrative Judge ("AJ1"), who found that the Agency had violated the Rehabilitation Act on another matter and ordered, in a September 15, 2010 decision, the Agency to engage in an interactive process with Complainant to find her a more suitable position to accommodate her disability.
Complainant argued that AJ1's order required the Agency to give Complainant priority consideration for placement into another vacant funded position for which she was minimally qualified to perform. In support of this claim, Complainant had a Union Representative testify at the hearing about the Agency's priority placement program and that Complainant should have been placed in the program pursuant to her medical condition. The Union Representative noted that the Agency failed to use its priority placement program for Complainant. The Agency's Human Resources Specialist (Specialist) testified at the hearing as well, stating that the priority placement was not exactly as the Union Representative has asserted and noted that priority placement did not guarantee placement in a position. The evidence showed that Complainant and the Specialist met to work on her applications for numerous positions posted in the Civilian Announcement Nomination System (CANS). Complainant applied for over 120 jobs on CANS, including the two positions raised in the instant matter.
Based on this evidence, AJ2 found that the September 2010 order did not specifically require that Complainant be afforded participation in priority placement program. However, AJ2 still determined that the Agency failed to adequately engage in the interactive process with Complainant regarding reasonable accommodation as ordered. AJ2 determined that the Agency's failure to engage in the interactive process constituted a per se violation of the Rehabilitation Act. Despite this finding, AJ2 held that Complainant did not suffer any damages as a result of the Agency's violation. As such, AJ2 did not award any remedies to Complainant.
The Agency subsequently issued a final order rejecting AJ2's finding that Complainant was subjected to a per se violation of the Rehabilitation Act and filed the instant appeal. Complainant cross appealed, contending AJ2 erred in finding no discrimination as to her non-selection for the two positions alleged in the instant complaint.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an EEOC 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 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Findings of No Discrimination
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that substantial evidence of record supports AJ2's decision concluding no discrimination was established regarding the two positions at issue. The responsible Agency officials provided legitimate, nondiscriminatory reasons for not selecting Complainant for the positions in question. As to the first position, Complainant's application materials did not establish that she was minimally qualified for further consideration for the position. As to the second position, the selecting officials determined that the Selectee had superior qualifications to Complainant. As for pretext, the record evidence also supports AJ2's conclusion that Complainant failed to prove, by a preponderance of the evidence, that the Agency's proffered reasons were pretext for discrimination. Therefore, we affirm the Agency's implementation of AJ2's finding of no discrimination with regard to the two non-selections.
Per Se Violation
AJ2, however, found that the Agency violated the Rehabilitation Act when it failed to engage in the interactive process to identify a reasonable accommodation for Complainant. AJ2 determined that this was required of the Agency in compliance with AJ1's decision of September 2010.
The record shows that the Agency appealed AJ1's September 2010 decision to this Commission, which was addressed in EEOC Appeal No. 0720110021 (February 10, 2012). In the decision in Appeal No. 0720110021, we ordered the Agency, among other actions, to "provide Complainant reasonable accommodation so that she may perform the essential functions of her position or find a vacant, funded position for which Complainant is qualified and reassign her into that position. Complainant has fifteen (15) days to accept or decline the Agency's offer of reassignment." Id. Therefore, the final order in this matter was the appellate order and not that of AJ1.
Following our decision in EEOC Appeal No. 0720110021, the matter was docketed as EEOC Compliance No. 0620120415, to allow the Commission's Office of Federal Operations to monitor the Agency's compliance with the order in our appellate decision. This compliance case was still open at the time of the hearing before AJ2 in March 2015. We note that AJ2's decision is silent on the Commission's decision in 0720110021, and AJ2 may not have been aware of the fact that the Commission was actively engaged in ensuring that the Agency was in compliance with its order to provide Complainant with a reasonable accommodation.
EEOC regulations at 29 C.F.R. � 1614.503 detail the procedures available for enforcement of Commission decisions. The regulation states that the next step to enforce a Commission order following compliance efforts by the Office of Federal Operations is through a petition for enforcement or clarification, or referral to the Commission. Therefore, AJ2 did not have jurisdiction over the compliance issue at the time of the March 2015 hearing as it was pending before the Office of Federal Operations. Complainant's concerns about the Agency's alleged failure to comply with remedies ordered by the Commission in EEOC Appeal No. 01720110021 should have been more properly raised with this Commission's compliance unit or as a petition for enforcement. As the matter was not properly before AJ2, we conclude that AJ2's finding of a per se violation of the Rehabilitation Act should be vacated. In doing so, we again note that AJ2 awarded no remedies to Complainant as a result of this finding.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's finding of no discrimination with regard to the two non-selections, and VACATE the finding of the per se violation of the Rehabilitation Act, for which the AJ awarded no remedies.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 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. The requests 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 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
August 16, 2016
__________________
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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