Loren M.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.Download PDFEqual Employment Opportunity CommissionDec 7, 20180120162323 (E.E.O.C. Dec. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Loren M.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 0120162323 Hearing No. 532-2015-00099X Agency No. DLAC-15-0016 DECISION 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 August 11, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 For the following reasons, the Commission AFFIRMS the Agency’s final decision. 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 attempted to file an appeal in this case on April 13, 2016. We docketed his submission as EEOC Appeal Number 0120161658. By letter dated June 28, 2016, we closed the appeal as premature. Noting that it appeared that Complainant filed the appeal from an Equal Employment Opportunity Commission Administrative Judge’s April 12, 2016, decision, we informed Complainant that he could file a new appeal when a final decision was issued in the case. On July 5, 2016, Complainant again filed a premature appeal, which we docketed as the instant matter. The Agency subsequently issued a final decision on August 11, 2016. Accordingly, the matter is now ripe for adjudication. 0120162323 2 ISSUES PRESENTED The issue presented is whether the Agency discriminated against Complainant on the basis of disability when it did not select him for the position of Supervisory Quality Assurance Specialist. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Production Specialist, GS-1910-11, at the Agency’s Land and Maritime, Defense Supply Center, facility in Columbus, Ohio. On August 7, 2014, the Agency announced vacancies for GS-910-12 Supervisory Quality Assurance Specialist positions. Complainant applied for a position and submitted his resume and a “Schedule A letter” from a medical professional. He was one of 19 applicants named to the Non-Traditional Certificate of Eligibles. The notation “N-PWD” appears next to the names of Complainant and two other candidates on the Certificate. A four-member panel interviewed eight applicants, including Complainant. They asked the applicants the same six questions, individually ranked the applicants, discussed their impressions, and recommended four candidates. They did not recommend Complainant. The Agency chose the four recommended candidates to fill four positions. On December 1, 2014, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability (thoracic outlet syndrome and psychiatric disability) when the Agency did not select him for the position of Supervisory Quality Assurance Specialist, GS-1910-12, under vacancy announcement number DLA-15-1182520-MP. In an attachment to his complaint, Complainant noted that he began working at the Agency “in 2007, with a ‘Schedule A’ certified letter” that identified him as a person with a targeted disability (PWTD). He also noted that he received a promotion to a GS-12-1910 Supervisory Tech/Quality Assurance Specialist position in March 2014 but returned to his Production Specialist position after approximately three months because of “an environment which had a history (both before and after [his] tenure) of leading to hostilities created by [his] supervisor.” In the attachment, Complainant alleged that the Agency’s use of a structured interview had a disparate impact on people with targeted disabilities. He stated that he had “been assessed twice using a structured interview, once successfully for [his previous promotion to a supervisory position] and once unsuccessfully for” the position at issue here. He argued that the first assessment was valid but the second assessment was invalid. According to Complainant, there was nothing in his “short tenure as a DLA Land supervisor that would show a correlation with a failed assessment, other than [his] conflicts with” his supervisor. Complainant further argued that the Agency’s “heavy reliance on the structured interview” was “the mechanism used to omit PWTD” and was not consistent with business necessity. 0120162323 3 Complainant cited an Office of Personnel Management (OPM) Report on the Employment of Individuals with Disabilities in the Federal Executive Branch for Fiscal Year 2012 (Dec. 2013) (OPM FY 2012 Report) and argued that the Report’s data “reveal that people with disabilities were hired at its highest rate in the past 17 years, but the number of disabled new hires fell from 1,122 in FY 2011 to 1,101 in FY 2012, therefore this rate increase was due to a significant decrease in the total population reported hired.” He also cited two Commission reports: U.S. Equal Employment Opportunity Commission Office of Federal Operations (EEOC OFO), Fiscal Year 2011 Annual Report on the Federal Work Force Part II Work Force Statistics (EEOC FY 2011 Annual Report); and EEOC OFO, Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force (2008) (EEOC 2008 PWTD Report). The EEOC 2008 PWTD Report noted that the percentage of federal employees with targeted disabilities had declined and that the fiscal year 2006 PWTD participation rate was the lowest that it had been in more than 20 years. Among other things, the Report stated, “As well, because the selection process often relies heavily on the interview, a manager’s bias may affect how s/he judges the qualifications and/or interview skills of a PWTD.” Complainant noted that the EEOC FY 2011 Annual Report indicated that only nine federal agencies had a reached the goal of at least a two percent PWTD participation rate and that the Agency’s FY 2011 rate was 1.60 percent. In his affidavit3 in the Report of Investigation (ROI), Complainant asserted that he was qualified for the Supervisory Quality Assurance Specialist position. He stated that he “passed a prior DLA supervisory assessment, successfully worked as a DLA supervisor before [his] alleged constructive resignation, and received the first years’ DLA supervisory certification.” Although he did not believe that “all of [his] qualifications could be listed in [his] resume/application,” he asserted that “most of [his] qualifications should have been known” because of his personnel records and interview. The EEO Investigator asked Complainant to identify the individuals whom he held responsible for his non-selection, to indicate whether they were aware of his impairment, and to explain why he believed that they did not select him because of his impairment. He replied that a “[d]isparate impact claim does not require necessity of showing intentional discrimination.” Complainant argued that he did not need to show the existence of a discriminatory motive because he was raising a claim under the disparate-impact, rather than disparate-treatment, theory of discrimination. In response to several of the EEO Investigator’s questions, Complainant asserted, My complaint has shown that the facially neutral policy of a heavy reliance on the structured interview has substantial adverse impact on me (as a member of the protected class of People with Targeted Disabilities (PWTD). 3 In an Investigator’s Declaration, the EEO Investigator noted, “Complainant has four declarations because he made changes to each declaration and resubmitted them to” the Investigator. This decision refers to the two most recent declarations, dated April 8, 2015. 0120162323 4 For disparate impact, the prima facie case is different in that you do not need to show your employer’s motive, but only that the policies and practices at issue have had a substantially disproportionate impact on PWTD, which data in Annual Reports on the Federal Work Force from EEOC and OPM indicate. The latest data from OPM, for PWTD in fiscal year 2013, indicate that On Board participation rate is 1.02%, while New Hire rate is 1.31%, at these rates the participation rates will always reflect a disparity and never reach their 2.0% goal rate. He asserted that, in his complaint, he provided statistical data showing disparate impact and that the data established that the Agency discriminated against him on the basis of disability. In their affidavits,4 the panel members stated that they asked the candidates the same set of questions and that reliance on the structured interview was a business necessity. The Integrated Supplier Team Chief (Panelist 1) stated in his affidavit that the panel members drafted the interview questions “based upon the knowledge, skills, and abilities required for the position. The questions were asked in the same format for all interviews.” He also stated that the panel members made the selection recommendations “as a group.” Panelist 1 told the EEO Investigator that, during the selection process, he did not see any documentation indicating that Complainant had an impairment. According to Panelist 1, he became aware that Complainant had a disability “during [the] ADR process” but did not know what the particular impairment was. Panelist 1 stated that he did not recommend Complainant for the position because he was not the best qualified candidate for the position. In that regard, Panelist 1 stated that Complainant “did not best display the qualities required for the position including leadership, communication, or organization skills.” He denied that Complainant’s impairment was a factor in the decision. He also denied that Complainant’s “alleged constructive resignation” from his previous supervisory position was a factor. In response to the EEO Investigator’s question about whether “heavy reliance on the structured interview” was a business necessity, Panelist 1 replied, “The interview provides an opportunity for the candidate to display their skills and abilities as well as talk about how those skills relate to the position they are applying for.” He asserted that the interview was an “important but not determining factor.” The Integrated Supplier Operations Team Chief (Panelist 2) stated that the panel members asked the candidates the same questions, evaluated their responses, “and discussed their overall impression of the interview.” Each panel member then ranked the candidates. Panelist 2, who noted that each panel member needed to fill a vacancy, explained that the panel “used a behavioral based interview technique to evaluate each candidate’s qualities as a potential first line supervisor and determined which of the candidates were best qualified to fill the position(s).” Noting that the referral certificate identified Complainant as “N-PWD,” Panelist 2 stated that he knew that Complainant had identified himself as a person with a disability but did 4 Each of the affidavits includes a series of questions and answers under the caption “Complainant’s Questions.” 0120162323 5 not know what the specific impairment was. Panelist 2 did not rank Complainant among the top four candidates because his “oral interview results were poor” and “demonstrated he did not obtain the qualities [Panelist 2] was looking for in a candidate.” He stated that his “team needed a knowledgeable supervisor with strong leadership skills” and that Complainant’s “interview results placed [him] below the selectee in terms of leadership skill.” Panelist 2 knew that Complainant previously had been selected for a supervisory job and subsequently returned to his former position, but he did not know the circumstances involved. In response to the EEO Investigator’s question about whether “heavy reliance on the structured interview” was a business necessity, Panelist 2 replied, “Yes.” The Chief Landing Maritime, Integrated Supplier Team Chief (Panelist 3) stated that each candidate received a score of 1-5 for each question. He noted that he gave Complainant a total score of 17 ½; he gave scores of 18 ½ to four candidates and 18 to two candidates. According to Panelist 3, Complainant’s “response on tasks and results on achievements was not defined well enough,” and Complainant did not provide sufficient clarification in one of the scenarios. Panelist 3 stated that he was not aware that Complainant had an impairment and asserted that nothing in Complainant’s application package indicated a disability. In response to the EEO Investigator’s question about whether “heavy reliance on the structured interview” was a business necessity, Panelist 3 replied, “Yes. The interview was necessary because the organization mandates [an] interview. The interview would give an idea of how the supervisor would behave in certain instances/occurrence on the job that I could not get from a resume.” The fourth panel member, the Land Supplier Operations, Combat Vehicle, Wheeled Vehicle IST Branch Chief (Panelist 4), stated that the panelists rated the candidates based on resumes and responses to the interview questions, discussed their individual rankings, and made recommendations to their division chiefs and directors. He also stated that he did not see any documentation indicating that Complainant had an impairment. Panelist 4 did not recommend Complainant for the position because “[h]e scored low on leadership, decisiveness.” In response to the EEO Investigator’s question about whether “heavy reliance on the structured interview” was a business necessity, Panelist 4 replied, “Yes.” Noting that the Agency previously had selected Complainant for a supervisory position, Panelist 4 asserted that “[t]he same process was used then as it was for this selection.” In an Investigator’s Declaration, the EEO Investigator noted that many of the documents that she initially received during the investigation were illegible, that she requested and received legible copies, and that the legible documents replaced the illegible documents in the investigative file. She also noted that she gave Complainant an opportunity to submit questions, which he did, but she denied his request to change the wording of her questions. The EEO Investigator submitted the Report of Investigation to the Agency’s EEO Office on May 8, 2015. On May 29, 2015, the Agency provided Complainant with a copy of the ROI. The Agency also provided Complainant with several documents that “were found missing, illegible, or incomplete.” The documents included copies of the EEO Counselor’s Report, interviewer notes, and the electronic signature for Panelist 1’s affidavit. 0120162323 6 At the conclusion of the investigation, the Agency provided Complainant with notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently, on April 10, 2016, withdrew his request. By order dated April 12, 2016, the AJ dismissed Complainant’s hearing request and remanded the case to the Agency for the issuance of a final decision. Consequently, on August 11, 2016, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Final Agency Decision In its final decision, the Agency found that it did not discriminate against Complainant on the basis of disability. The Agency concluded that Complainant did not establish a prima facie case of disparate impact because he did not submit any statistical data to support his contention. In that regard, the Agency noted that “Complainant did not submit any comparative evidence regarding candidates with targeted disabilities who applied for jobs similar to Complainant with the Agency and were not selected in favor of applicants not of the protected class.” Although one of the reports that Complainant submitted addressed the Agency’s hiring of people with targeted disabilities, “it only addressed the total number of those of the protected class who were hired.” CONTENTIONS ON APPEAL On appeal, Complainant argues that the investigation was inadequate because it “was conducted in accordance with the requirements for a disparate treatment claim, not the alleged disparate impact claim.” He asserts that the Agency provided him with a revised Electronic Complaint File on April 2, 2016, that differed from the file that the Agency provided to him on May 29, 2015. According to Complainant, the May 2015 file contained an “adulteration of the facts,” and the April 2016 file involved an “omission of facts.” In addition, he appears to object to the handling of his case during the pre-hearing process and the AJ’s dismissal of his hearing request. Complainant further argues that that he established a prima facie case of disparate impact. He states that the EEOC 2008 PWTD Report showed that there is a disparity in the hiring and advancement of people with targeted disabilities in the federal workforce and that the EEOC FY 2011 Annual Report established that the Agency’s PWTD participation rated was 1.60 percent. Complainant argues that the Agency did not establish that its reliance on the structured interview was a business necessity.5 5 In addition, Complainant contends that the Agency issued the final decision in an untimely manner because it did not issue it within 40 days of the AJ’s order dismissing his hearing request. Commission regulation 29 C.F.R. § 1614.110(a) states that an agency shall issue a final order within 40 days of receipt of an AJ’s decision issued under 29 C.F.R. § 1614.109(b), (g), or (i). That provision does not apply here, where the AJ granted Complainant’s motion to withdraw his hearing request and did not issue a decision pursuant to 29 C.F.R. § 1614.109(b), (g), or (i). Although unclear, Complainant appears also to argue that the Agency erroneously dismissed his 0120162323 7 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”). ANALYSIS AND FINDINGS Adequacy of Investigation and Dismissal of Hearing Request Complainant alleges that the investigation in this case was inadequate. We disagree. Although some of the EEO Investigator’s questions pertained to matters relevant to the disparate-treatment theory of discrimination, other questions were relevant to the disparate-impact theory. Further, Complainant repeatedly addressed the disparate-impact theory in his affidavit, and the reports that he cited are in the ROI. Moreover, the EEO Investigator specifically asked the interview- panel members several questions that Complainant submitted. Some of those questions mentioned disparate impact and business necessity. Complainant also alleges that the Agency provided him with a May 2015 complaint file containing an “adulteration of facts” and an April 2016 file involving an “omission of facts.” Complainant, however, does not explain what the alleged adulteration and omission are, and he offers no evidence to substantiate his allegations. His bald assertions are insufficient to establish that the investigation and processing of his complaint were inappropriate or inadequate. Finally, to the extent that Complainant objects to the AJ’s handling of his case, we disagree. The Commission’s regulations afford broad authority to Administrative Judges regarding the administrative hearing process. See 29 C.F.R. § 1614.109; EEO-MD-110, Chap. 7, § III. The record establishes that Complainant withdrew his request for a hearing on April 10, 2016. The AJ properly dismissed Complainant’s hearing request in response to his request. Disparate Impact Pursuant to traditional disparate-impact analysis, a complainant must show that a practice or policy, although facially neutral, had a significant discriminatory impact on members of the protected class. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). complaint for failure to state a claim. See 29 C.F.R. § 1614.107(a)(1). The Agency did not do so. Instead, the Agency issued a final decision on the merits of Complainant’s complaint. 0120162323 8 To establish a prima facie case of disparate impact, the complainant must: (1) identify the specific practice or policy being challenged; (2) show a statistically significant disparity; and (3) show that the disparity is linked to the challenged practice or policy. Id. at 994. The burden is on the complainant to show that the facially neutral standard in question affects individuals in the protected group “in a significantly discriminatory pattern.” Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). Further, under the Rehabilitation Act, an agency may not use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the criteria are job related and consistent with business necessity. See 29 C.F.R. § 1630.10(a). Selection criteria that exclude individuals with disabilities on the basis of disability but do not concern an essential function of the position in question are not consistent with business necessity. An employer may not use a selection criterion that is related to an essential function to screen out an individual on the basis of disability if the individual could meet the criterion through reasonable accommodation. 29 C.F.R. app. 1630.10(a). In this case, Complainant has not established a prima facie case of disparate impact under traditional disparate-impact analysis. He argues that data in the OPM 2013 Report, EEOC FY 2011 Annual Report, and EEOC 2008 PWTD Report support his allegation that the Agency’s use of a structured interview had a disparate impact on people with targeted disabilities. Nothing in the three reports, however, establishes that the structured-interview process disproportionately screened out PWTD candidates. For example, the reports provide no information about the number of people with and without targeted disabilities who underwent structured interviews and the number of people with and without targeted disabilities who received job offers after such interviews. The EEOC FY 2011 Annual Report, which states that the Agency had a 1.60 percent PWTD participation rate in fiscal year 2011, does not show that the structured-interview process had a disparate impact on PWTD candidates. Similarly, Complainant has not shown that the structured interview was a selection criterion that screened him out on the basis of disability. He has not established a nexus between his disability and his interview results. That is, Complainant has not cited any disability-related condition that interfered with or otherwise affected his ability to have a successful interview. He has not explained why he believes that his disability prevented him from doing better in the interview. Having carefully reviewed the evidence of record, we find that Complainant has not shown that the Agency’s use of a structured interview screened him out on the basis of disability or had a disability-based disparate impact. Accordingly, we find that Complainant has not shown that the Agency discriminated against him as alleged. 0120162323 9 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. 0120162323 10 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 December 7, 2018 Date Copy with citationCopy as parenthetical citation