Emanuel W.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 10, 20180120170147 (E.E.O.C. Apr. 10, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emanuel W.,1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120170147 Agency No. 200P-0605-2015105146 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 1, 2016, finding no discrimination with regard to his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On October 5, 2015, Complainant filed his complaint alleging discrimination based on age (over 40), race (African American), and disability (degenerative disc with paralyzed sciatica), when on August 28, 2015, he became aware of the Agency’s failure to hire him for the Supervisory Public Affairs Specialist, GS-13 position announcement number LL-15-LS-MPA-1429469. 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. 0120170147 2 After completion of the investigation of the complaint, Complainant was notified of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge, but chose not to do so. The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant appealed from the Agency’s final decision. ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incident. At the relevant time, Complainant, who was employed as a Multimedia Specialist, GS-1001-12, with the Defense Information Systems Agency in Maryland, applied for the Supervisory Public Affairs Specialist, GS-13 position with the Agency. The Agency indicated that the position’s major duties and responsibilities involved, in part, the presentation of the Healthcare System mission, services, and activities to staff and public; and the management of the Public Affairs Program for the Healthcare System. The Agency also indicated that the incumbent served as the Healthcare System spokesperson. A Human Resource (HR) Specialist stated that she announced the position at issue; screened applicants for qualifications; and referred the qualified applicants to the selecting official. The HR Specialist indicated that Complainant, based on his resume, did not possess the specialized experience at the next lower grade level, i.e., in part, ability to advertise, plan, write, implement and organize ongoing outreach campaigns for a large Healthcare system. Specifically, the HR Specialist stated that Complainant had no experience working in a Healthcare organization at all and his resume did not reflect the specialized experience the Agency was looking for. The HR Specialist further indicated that the Agency ultimately made no selection for the vacancy at issue. We note that in his resume, Complainant indicated his work experiences which included printing, shipping/receiving, graphic art/design/illustrator, web design, visual information, technical illustration, and public affairs. There is no indication in his resume that he had any work experience involving a Healthcare system. Complainant claimed that two of his clients were Medi-Home Care and Weirton Medical Center (regional hospital). In this regard, we note 0120170147 3 that Complainant clearly listed in his resume that he, as owner/creative director/illustrator for his art company, provided his service to those two medical facilities. His resume is devoid of any work experience within those medical facilities or any healthcare systems. On appeal, Complainant argues that he should have gotten the job because he was a veteran with 40 years of experience. We note that there is no evidence that veteran applicants were ineligible for the position at issue. Furthermore, the record clearly indicates that Complainant’s 40 years of experience did not involve the specialized experience related to the position’s major duties and responsibilities. It is noted that we do not address in this decision whether Complainant is a qualified individual with a disability. Furthermore, we note that Complainant has not claimed that he was denied a reasonable accommodation. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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 0120170147 4 (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 April 10, 2018 Date Copy with citationCopy as parenthetical citation