0520180223
08-15-2018
Kermit P,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
Kermit P,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180223
Appeal No. 0120172003
Agency No. 200J06572015103069
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120172003 (January 24, 2018). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
Complainant appealed asserting that the previous decision erroneously dismissed his appeal as untimely. We note that Complainant indicated that he typed the address on the envelope erroneously. As such, his appeal was not properly sent to the Commission within the time frame. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request.
However, on our own motion, we take notice of Complainant's indication that he is totally blind and that he was not aware that he typed the wrong address when he submitted his appeal. As such, we shall reverse the decision in EEOC Appeal No. 0120172003 and shall address the merits of Complainant's EEO complaint for the first time.
BACKGROUND
At the time of events giving rise to this complaint. Complainant was an applicant seeking employment with the Agency as a GS-6 Secretary under Vacancy Announcements STL-T5-SLS-15-1284916 and STL-15-HRG-1322991 and as a GS-4 Telephone Operator under Vacancy Announcement STL-14-RG-1249117.
When Complainant was not selected for the positions in question, he contacted the EEO Counselor alleging discrimination. When the matter was not resolved informally, Complainant filed an EEO Complaint alleging discrimination on the bases of sex (male), race (Black), age (65) and disability (blind) when:
1. On March 13, 2015, he was not hired for the position of Secretary/Office Automation, GS-6, under Vacancy Announcement STL-T5-SLS-15-1284916.
2. During May 2015, he was not hired for the position of Secretary, GS-6, under Vacancy Announcement STL-15-HRG-1322991.
3. On December 5, 2015, he was interviewed but not hired for the position of Telephone Operator, GS-4, under Vacancy Announcement STL-14-RG-1249117.
The complaint was accepted for an investigation. Following the investigation, Complainant was provided with a copy of the report of investigation and notified of his right to request a hearing. When Complainant failed to request a hearing, the Agency issued a final decision on February 8, 2017.
The Agency determined that Complainant failed to establish that he was subjected to discrimination as alleged. The Agency noted that Complainant was not considered for the positions listed as claims (1) and (2) for he failed to show he was qualified for the positions. As to claim (3), the Agency indicated that Complainant was interviewed for the position, however, the selectee was the better candidate for the position. In addition, the Agency noted that Complainant asserted that he was denied a reasonable accommodation when the Agency failed to place him into one of the three positions under Schedule A. However, the Agency determined that Complainant erroneously asserted that he was entitled to selection for one of the three positions.
Complainant appealed the Agency's final decision to the Commission without specific comment.
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").
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the positions for which he applied. As for claims (1) and (2), two Human Resources Specialists indicated that they reviewed his applications for the GS-6 positions and note that his resume and application materials did not reveal that he had specialized experience required for the secretarial positions. As for claim (3), Complainant's resume was forwarded for consideration. The Selecting Official averred that Complainant was interviewed along with five other candidates for the position in question. The panel members reviewed and interviewed the candidates and gave them scores. The Selectee received a 61 out of 70 while Complainant received an overall score of 33. The Selecting Official noted that the Selectee had excellent communication skills and provided detailed responses to the interview questions. In contrast, the Selecting Official noted that Complainant did not perform as well during the interview and failed to demonstrate that he had the requisite experience for success in the position at issue. Therefore, based on a review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its decisions.
We turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Complainant failed to provide any evidence and just argued that the Agency should have been referred for consideration based on the Agency's Schedule A hiring authority regarding the positions raised in claims (1) and (2). With respect to claim (3), Complainant argued without proof that he was better qualified than the Selectee. A review of the record does not support Complainant's bald assertions. Therefore, we conclude that Complainant has not shown that the Agency's decisions not to select him for the positions alleged in claims (1), (2) or (3) were discriminatory.
Reasonable Accommodation
Regarding applicants for employment, the Commission's policy states, "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)." EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act. No. 915.002, Question 13 (as revised October 17, 2002).
Complainant asserted that he was denied a reasonable accommodation when the Agency failed to place him in a position using the Schedule A hiring authority. Upon review, we find that Complainant has not shown that the Agency was obligated to place him in a position. Although the Agency is authorized to use the 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.
Because this is the first decision addressing the merits of the complaint, we shall grant reconsideration rights to both parties.
CONCLUSION
The decision in EEOC Appeal No. 0120172003 is VACATED and the Agency's 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 (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
August 15, 2018
__________________
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.
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