0120170241
07-18-2018
Fernando D.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fernando D.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170241
Agency No. 200J-0618-2015103070
DECISION
On October 15, 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 September 7, 2016,2 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., 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, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Agency properly dismissed one of Complainant's allegations on the ground that it failed to state a claim, (2) whether the Agency denied Complainant a reasonable accommodation for his disability, and (3) whether the Agency discriminated against Complainant on the bases of race, sex, age, and disability when it did not select him for the positions of Medical Support Assistant and Program Support Assistant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency's VA Medical Center (VAMC) in Minneapolis, Minnesota. On August 4, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (blindness), and age (63) when:
A. the VAMC Human Resources Department failed to notify him that a Secretary position was posted at the Internal Revenue Service (IRS), Minneapolis, Minnesota, during the period April 16-23, 2013;
B. during December 31, 2013, through January 1, 2014, the Human Resources Department failed to refer his application for consideration for the position of Medical Support Assistant, GS-5, under vacancy announcement number VU-14-KLU-992518, in accordance with Schedule A authority;
C. he was denied a reasonable accommodation during the period April 3, 2013, through April 3, 2015, when the Human Resources Department failed to notify him or conduct a search of various clerical positions for which he was qualified; and
D. on May 18, 2015, he was not selected for a Program Support, GS-5, position when other applicants under Schedule A authority were referred for consideration but he was not.
The Agency dismissed Claim A on the ground that it failed to state a claim. In that regard, the Agency stated that the VAMC Human Resources Department did not have authority regarding the announcement or posting of positions at other government facilities.
On December 31, 2013, the Agency announced a vacancy for a Medical Support Assistant, GS-0679-00, at the Minnesota VA Health Care System. The announcement listed the documents that applicants must submit to be considered for the position and noted that the Agency "encourages persons with disabilities to apply, including those eligible for hiring under 5 CFR 213.3102(A), Schedule A." Complainant did not submit an application for the position.
Around March 25, 2015, Complainant called a Supervisory Human Resources Specialist (HR1) and expressed interest in GS-4 or GS-5 clerical positions. He sent HR1 a March 25, 2015, letter expressing interest in Office Automation Clerk/Assistant, Telephone Operator, Secretary, Medical Support, and Program Support positions. By letter dated April 3, 2015, HR1 informed Complainant that he had been found to be qualified for a vacant GS-0303-5 Program Support Assistant position. He stated that the Agency would retain Complainant's application in its Schedule A database. In addition, HR1 noted that the database was not the only applicant source for hiring officials, stated that the Agency also announced vacancies on the USAJobs website, and gave Complainant contact information for the Agency's EEO Specialist as well as the Selective Placement Coordinator. The Extended Care and Rehabilitation Social Work Supervisor (SO) chose a female Caucasian applicant from the Schedule A database for the position.
In his affidavit, Complainant stated that he did not officially apply for the Medical Support Assistant vacancy because he believed that the Agency would retrieve the application that he had submitted for a Telephone Operator position in September 2003. Complainant asserted that, previously, an individual at a different VAMC had retrieved an application that he submitted 1983 and forwarded it to a selecting official. He also asserted that an Agency Human Resources Specialist, who no longer works for the Agency, notified him of the Medical Support Assistant vacancy before it was announced to the public but did not inform him that he needed to submit an application. Complainant acknowledged that no one at the Agency told him that his prior application would be retrieved. He also acknowledged that the vacancy announcement for the position stated that interested individuals should submit an application.
Complainant asserted that he left a voice-mail message for another Human Resources Specialist (HR2), who also no longer works for the Agency, on April 3, 2013. He stated that he asked her to accommodate his disability by searching for, notifying him of, and referring his application for any secretarial or clerical vacancies. He further stated that HR2 did not respond to his call. In addition, Complainant asserted that HR1 told him on March 20, 2015, that there had not been any secretarial vacancies as of April 3, 2013, but told him on March 25, 2015, that there had been a secretarial vacancy on April 3, 2013. He alleged that the Agency's failure to notify him of the vacancy constituted disparate treatment and a denial of reasonable accommodation.
With respect to the GS-5 Program Support Assistant position, Complainant stated that HR1 called him on March 25, 2015, to ask if he was interested in the position. Complainant told HR1 that he was interested. When he spoke with an EEO Manager on May 18, 2015, he learned that the Agency had selected someone else for the position.
HR1 stated in his affidavit that Complainant did not apply for the Medical Support Assistant position and that there was no record of Complainant ever "expressing interest in this position to the HR Specialist who was conducting the recruitment effort." He also stated that the Schedule A hiring authority does not apply to the Medical Support Assistant position, which is a "Hybrid Title 38 occupation." He explained that the Schedule A hiring authority allows qualified individuals "to be considered noncompetitively for Title 5 competitive service occupations." Because the Medical Support Assistant position is not a Title 5 position, the Agency cannot hire candidates for the position under the Schedule A authority.
According to HR1, "Schedule A eligibility does not override the need for such a candidate to identify interest in specific opportunities and/or apply or seek assistance to apply for such opportunities through the vacancy contact." He noted that the Agency maintains a noncompetitive-candidate database, which includes Schedule A applicants, and that managers may consider those applicants when vacancies occur. There is no requirement, however, that the Human Resources Department refer a Schedule A candidate to vacancies for which the candidate has not applied. Instead, it is the responsibility of the Schedule A candidate to apply for a position when a vacancy is announced.
In addition, HR1 stated that the Agency did not announce the GS-5 Program Support Assistant position on USAJobs because the hiring manager wanted to consider noncompetitive candidates for the position. He gave Complainant's resume as well as those of other Schedule A candidates to the hiring manager. He then notified Complainant of the referral.
SO stated in her affidavit that she chose the selectee for the Program Support Assistant position because the selectee had a B.A. in marketing and business management, "ten years of experience in health care settings," and "experience in Epic, office, VISTA, Access, and various other data management systems." She did not choose Complainant for the position because his "resume did not reflect experience in data management, community or major event work, computer skills in VISTA, outlook, or share point, nor work experience in a medical setting."
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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency reiterated the dismissal of Claim A on the ground that it failed to state a claim. Assuming that Complainant established prima facie cases of discrimination, the Agency found that it had articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not prove that the articulated reasons were a pretext for discrimination. The Agency also found that Complainant did not establish that the Agency denied him a reasonable accommodation when it did not search for and notify him of clerical vacancies.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency should not have dismissed Claim A. In addition, he reiterates his allegation that the Agency failed to provide him with a reasonable accommodation when it did not consider him for a secretarial vacancy in April 2013. He argues that HR1 is not credible because HR1 told him in March 2015 that there had not been any secretarial vacancies on April 3, 2013. Complainant states that he did not apply for the Medical Support Assistant position because he never saw the vacancy announcement. He notes that he applied for a Medical Support Assistant position in January 2009 and "followed the specific instructions cited in the vacancy announcement." According to Complainant, Agency Human Resources representatives did not tell him that he needed to reapply for the position. He asserts that the Agency previously accommodated him by notifying him of a Secretary position in 1983 and a Telephone Operator position in December 1984. He also asserts that, although the position was a "hybrid" position, he could have applied for it under Schedule A authority and been "hired as a U.S. citizen."
In response, the Agency argues that Complainant has not shown that discriminatory intent motivated the Agency's actions or that the Agency failed to provide him with a reasonable accommodation.
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 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").
ANALYSIS AND FINDINGS
Dismissal of Claim A
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal-sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege she or he is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant's allegation that the Agency failed to notify him that a Secretary position was posted at an IRS facility in April 2013 does not allege a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. He has offered no explanation for why he apparently believes that notification about vacancies at other agencies would be a term or condition of employment at this Agency. His allegation does not state a viable claim of discrimination.
Reasonable Accommodation
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). To establish that he 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 him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Reasonable accommodation includes "[m]odifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires." 29 C.F.R. � 1630.2(o)(1)(i). "An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship)." Enforcement Guidance on Reasonable Accommodation at Question 15.
In this case, Complainant alleges that the Agency denied him a reasonable accommodation when it failed to search for, notify him of, and refer his applications for clerical positions, including an April 2013 secretarial vacancy. Complainant has not shown that the Agency was obligated to conduct such searches, notifications, or referrals on his behalf as a form or reasonable accommodation. To the extent that Complainant is arguing that the Agency should have automatically referred his application under Schedule A, his argument is unpersuasive. Although the Agency is authorized to use Schedule A hiring authority when considering certain people with disabilities, the use of this authority is not mandatory. See generally 5 C.F.R. � 213.3102(u). Therefore, based on our review of the record, we conclude that Complainant has not established that the Agency denied him a reasonable accommodation. See Porter v. Dep't of Agric., EEOC Appeal No. 0120091466 (Aug. 8, 2011); Porter v. Dep't of Agric., EEOC Appeal No. 0120081850 (Aug. 8, 2011); Porter v. Dep't of the Treasury, EEOC Appeal No. 0120090177 (Mar. 13, 2009).
Disparate Treatment
To prevail on his disparate-treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
We assume, for purposes of analysis only and without so finding, that Complainant has established prima facie cases of discrimination based on race, sex, age, and disability.
We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. HR1 stated that Complainant did not submit an application for the Medical Support Assistant position and that the Schedule A hiring authority did not apply to the position. He also stated that there was no requirement that the Human Resources Department refer a Schedule A candidate to vacancies for which the candidate has not applied. SO stated that she chose the selectee for the Program Support Assistant position because of the selectee's experience in health-care settings and with data-management systems. Complainant's resume did not reflect experience in data management or a medical community.
Complainant has not shown that the articulated reasons are unworthy of credence. Complainant, who acknowledges that he did not apply for the Medical Support Assistant position, has offered no evidence that the Agency ever hired someone for such a position in the absence of an application. His assertion that the Agency notified him of vacancies for two different positions in 1983 and 1984 does not establish pretext here, where the vacancy at issue arose nearly thirty years later, occurred at a different Agency facility, and involved different Agency officials. Similarly, Complainant has not shown that the Agency was required to refer Schedule A candidates to other suitable vacancies. In addition, he has not shown that he was more qualified for the Program Support Assistant position than was the selectee. Finally, Complainant has not shown that discriminatory animus motivated the Agency's actions. Accordingly, we find that Complainant has not established that the Agency's articulated reasons are a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision and its finding of no discrimination.
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
___7/18/18_______________
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.
2 Complainant states that he received the final agency decision on September 21, 2016. The Agency does not dispute Complainant's statement.
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