Emanuel W.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Apr 10, 2018

0120160222 (E.E.O.C. Apr. 10, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Emanuel W.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120160222

Hearing No. 440-2015-00070X

Agency No. FSIS-2014-00594

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated November 5, 2015, 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.2 For
the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency. On July 8, 2014, Complainant filed his complaint alleging
discrimination based on race (African American), color (black), disability (spine and nerve, 30%
or more service connected disability), sex (male), and age (over 40), when on June 3, 2014, he

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.
2 Although Complainant filed the instant appeal prematurely on October 13, 2015, since the
Agency issued its final order on November 5, 2015, we find the appeal no longer premature.
Thus, we will consider the appeal from the Agency’s final order.
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learned that he was not selected for the GS-1084-11/12, Visual Information Specialist (Graphic
Designer) position, advertised under vacancy announcement number FSIS-MCE-2014-0035.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency filed
its motion for summary judgment on April 21, 2015. Complainant did not respond to the
motion. On October 7, 2015, the AJ issued a decision without holding a hearing, finding no
discrimination. The Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. At the relevant time, Complainant was employed with the
Defense Information Systems Agency as a Multimedia Specialist, GS-12, in Maryland. He
applied for the GS-12, Visual Information Specialist (Graphic Designer) position at issue with
the Agency.

The Agency indicated that the Graphic Designer’s duties involved designing various products
such as posters and brochures, using design software to create visual materials, and providing
computer-generated presentations. The Agency also indicated that in order to qualify for the GS-
12 level position, for which Complainant applied, applicants were required to show in their
resume that they had specialized experience in at least six of the following:

(1) Work in a commercial offset printing and/or service bureau environment;
(2) Skill in offset printing process;
(3) Preparation of files for large format printing output and vector art;
(4) Knowledge of International Color Consortium profiles;
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(5) Use of graphic software;
(6) Scanning, retouching and resizing of images;
(7) Creation of audio files and interactive CD’s; and
(8) Formulating table displays for exhibits.3

The Agency indicated that they received almost 200 applicants for the vacancy at issue. A
Human Resources Specialist (E1) and a Lead Printing Specialist (E2) reviewed applicants’
resumes and referred qualified applicants for consideration for the position. E1 stated that he
determined whether the applicants met the minimum qualifications for the position based on
applicants’ resumes. E1 stated that he redacted all information from the resumes, including their
name and years of experience, not the experience itself, and sent those redacted resumes to E2.
E2 indicated that she received the redacted resumes from E1 and she too determined whether the
applicants met the minimum qualifications for the position. E1 and E2 indicated that they were
unaware of Complainant’s race, color, sex, age, or disability at the relevant time.

The Agency stated that for the GS-12 position, only two of these applicants were eligible as best
qualified applicants and they were referred for the consideration. Complainant was not referred
for consideration because he only qualified in specialized experience areas (5) and (8), described
earlier in this decision. After interviews, the Agency selected a selectee (34 years old, African
American, male, no disability) from the GS-11 level certificate for the position.

Complainant claimed that he was qualified for the position because he met the six required
special experience qualifications, i.e., qualifications (1), (2), (3), (5), (6), and (8). Specifically,
Complainant claimed that he met: qualification (1) because he worked at a private printing
company for one year from February 1985, to February 1986; qualification (2) because he
worked at the private printing company, described earlier, and had been working in Defense
Information Systems Agency utilizing “all other production equipment;” qualification (3)
because he identified all the equipment in his resume that he was familiar with outputting large
formats; qualification (6) because he had been a graphic designer for 38 years and everything
designers did was scanning and using fax machines, copiers, and scanners. Complainant
maintained that the Agency should have known that he was well qualified for the position based
on the foregoing. We note that Complainant, however, does not contest that he failed to clearly
indicate in his resume that he met qualifications (1), (2), (3), and (6) by specifying the
experiences/skills set forth therein.

We find that even if we assume that Agency failed to realize Complainant’s qualifications as he
claimed, there is no evidence such was based on discrimination as he alleged. Furthermore,
although Complainant claimed that he was qualified for the position because he had 38 years of
experience as a graphic designer, we note that a certain number of years of experience was not
required to be qualified for the position. It is noted that we do not address in this decision

3 For the GS-11 level, applicants were required to show experience in at least four of the
following: design files including print and electronic forms and (1), (2), (3), (5), (6), and (8),
which were also listed for the GS-12 level.
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whether Complainant is a qualified individual with a disability. Here, 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 order 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
(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).

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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