Jared F.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120172713 (E.E.O.C. Oct. 24, 2018)

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

Jared F.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120172713

Agency No. NPS-16-0477

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 18, 2017
final decision concerning an equal employment opportunity (EEO) complaint claiming
employment discrimination in violation of 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.

BACKGROUND

On November 30, 2016, Complainant, a job applicant with the Agency, filed a formal complaint
claiming the Agency discriminated against him based on disability and age when on May 31,
2016, he was not selected and given Schedule A preference for the position of Park Ranger
(Interpretation), GS-0025-05, at the Port Chicago Naval Magazine Memorial in Concord,
California advertised under Vacancy ID # HRCSS-PWR-16-1589822.2

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 Schedule A hiring authority is a non-competitive appointment authority for applicants with
disabilities.
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After the investigation of the claim, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision on
July 18, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant identified his disability as blindness, and stated that his disability was listed in his
application for the position in question.

Agency management articulated legitimate, nondiscriminatory reasons for not selecting
Complainant. An Agency Supervisory Human Resources Specialist (“HR Specialist”) (born
1968) stated that Complainant applied for five out of twelve locations with vacancies for the
Park Ranger (Interpretation) positions.

3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified
individual with a disability.

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The HR Specialist further stated that the application involved a self-rating system on USA
Staffing. The scoring of the self-rating was done by a computer. The HR Specialist stated that
no one looked at Complainant’s application for the subject position “because he rated himself, it
is a self-rating system on USA staffing, he rated himself into the well qualified group and we
only look at the Applicants in the best qualified group. We have a cut off score. . . we only look
at all Applicants that were at a ninety-five (95) and above.” Complainant’s self-rating did not
result in him attaining a score of 95 or above. Therefore, the HR Specialist stated that they were
not aware of Complainant’s disability and age when he was eliminated from consideration.
Moreover, she stated that no selection was made for the position in question.

The Chief of Interpretation and Education (born 1975) stated that she oversees visitor service
operations of the National Park Service four sites, including the Port Chicago Naval Magazine
National Memorial. The Chief stated that Complainant was not referred by Human Resources
for the Park Ranger (Interpretation) position as he did not make the cut-off score from his self-
rating. The Chief stated that approximately one hundred applicants were on the certificates of
eligible applicants.

The Chief stated that the reason the vacancy announcement was issued for the Port Chicago Park
Ranger position was because the incumbent was planning to leave the position. However, the
incumbent eventually decided not to leave. As a result, no one was hired or interviewed for the
subject position.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination.

Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of
the evidence of record does not establish that discrimination occurred.

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.
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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.
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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 24, 2018
Date