Frederick A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionOct 23, 20180120171093 (E.E.O.C. Oct. 23, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frederick A.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120171093 Hearing No. 410-2013-00056X Agency No. 11-67004-00985 DECISION On December 16, 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 November 21, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision (FAD). ISSUE PRESENTED The issue presented in this case is whether the Agency’s FAD erred in finding that Complainant was not subjected to discrimination when he was not selected for one of the four vacancy announcements to which he applied. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for one of four advertised vacancies at the Agency’s Marine Corps Logistics Base in Albany, Georgia. The record revealed that Complainant had previously been employed by the Agency. The record indicates that on May 23, 1997, he was hired as a Sandblaster. Subsequently, Complainant, a reservist, was called to activity duty and sustained injuries while deployed in Bosnia. 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. 0120171093 2 As a result of his injuries, the Office of Personnel Management (OPM), informed Complainant, in a letter dated July 12, 2004, that “based on medical documentation and related materials, his physical condition posed an unacceptable safety and health risk, likely adversely affecting his ability to perform the full range of duties required for his position.” Complainant was thereafter removed from his position and from the Agency. Thereafter, as part of a class action settlement agreement, Complainant was allowed to pursue an individual complaint. Complainant maintained that he was not selected for four positions that were announced in 2004 and 2007. On July 27, 2004, Complainant applied for the position of Sandblaster, a term appointment not to exceed 1 year. He applied for one of ten vacancies. He was referred for selection but was not interviewed or selected. The record indicates that four African American males were selected. Management indicated that Complainant was not selected because he had previously been medically removed from a Sandblaster position. Complainant also applied for the position of Motor Vehicle Operator; however, no selections were made, however, regarding this vacancy. Additionally, Complainant applied for the position of Motor Vehicle Dispatcher, but the vacancy announcement was canceled on April 17, 2007, “due to the number of declinations and lack of well qualified candidates.” On July 6, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and color (Black) when he was not selected for one of the four positions. 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 (AJ). Complainant requested a hearing, but the AJ subsequently dismissed the hearing request on the grounds that Complainant failed to cooperate. Although the AJ also erroneously dismissed the complaint, the Commission in EEOC Appeal No. 0120140377 (June 15, 2016) ordered the Agency to issue a final decision. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency maintained that it articulated legitimate, nondiscriminatory reasons for its actions, namely, with regard to the Sandblaster vacancies, that Complainant was referred for one position but he was not interviewed because he had been removed from the same position on December 20, 2002, due to his inability to perform the work because of his medical condition. For the second Sandblaster position, Complainant was not referred for the same reason. The selecting official denied that Complainant’s race or color were factors in his nonselection and noted that three African-Americans were initially selected for the vacancies. With respect to the other two positions, Human Resources (HR), explained that the RESUMIX system was used to fill the internal vacancies and had been used since 1999. This system allowed HR to extract only resumes that matched one or more skills. Those resumes identified by RESUMIX were then examined by HR to determine if they met the requirements of the position description, as well as OPM qualification standards, which resulted in the Best Qualified applicants for the position. Complainant was not selected by RESUMIX and therefore he was not referred. 0120171093 3 Complainant argued that he had supplied an updated medical report to “someone” he had worked for and that OPM should have considered the updated medical records. The Agency found, however that Complainant did not provide any evidence, other than his assertions, that discriminatory animus was involved in the selection decisions. Complainant also acknowledged that he was not aware that African-Americans had been selected for the Sandblaster position. The Agency determined that Complainant failed to demonstrate that the Agency’s reasons were pretext for discrimination. CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that the Agency should not have terminated him after his return from Bosnia. He maintains that he provided updated medical information from his doctor indicating that he was able to do any job, but the Agency continues to view only his old medical documentation. In response, the Agency contends, among other things, that assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that there was no selection regarding three of the positions; and with respect to the remaining position, Complainant was not selected because he had previously been found medically unqualified for the position. The Agency argued that Complainant did not show that his protected bases were factors in the non-selection, and, did not show that the Agency’s reasons were pretext for discrimination. ANALYSIS AND FINDINGS 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 Chapter 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”). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume that Complainant established a prima facie case of race and color discrimination, we find that the Agency articulated legitimate nondiscriminatory reasons for its actions, namely with respect to three of vacancies that Complainant applied for, his resume was not flagged by RESUMIX, so he was not considered. 0120171093 4 With regard to the Sandblaster position to which Complainant was referred for consideration, the selecting official indicated that he was not selected because his medical documentation showed that he was unable to perform the essential functions of the Sandblaster position. The Agency maintained that with regard to all of the positions, Complainant’s race and color played no role in his non-selection. We find that Complainant did not establish that discriminatory animus based on his race or color was involved in the non-selections, and Complainant did not demonstrate that the Agency’s legitimate, nondiscriminatory reasons were pretext for discrimination. Further, we find that Complainant did not provide any evidence which showed that he was so much better qualified than the selectees, that discrimination could be inferred. Finally, with regard to Complainant’s contentions on appeal, we find that while Complainant argues that his new medical documentation was not considered, he does not reveal who he gave the new medical documentation to; in fact, other than Complainant’s assertion, we have no evidence that Complainant provided new medical documentation to the Agency. Moreover, Complainant does not establish a nexus between the Agency’s failure to consider his updated medical documentation and his allegation of race and color discrimination. We find that other than Complainant’s conclusory statements, he did not provide any evidence to establish discrimination here. CONCLUSION Accordingly, the Agency’s FAD 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. 0120171093 5 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. 0120171093 6 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 October 23, 2018 Date Copy with citationCopy as parenthetical citation