0120055468
06-05-2007
Marvin Porter, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Marvin Porter,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01200554681
Agency No. TD 02-4192R
DECISION
Complainant filed an appeal from the agency's July 22, 2005 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
During the period at issue, complainant was an applicant for employment at the agency's Medical Center in Minneapolis, Minnesota. On May 18, 2002, complainant filed the instant formal complaint. Therein, complainant claimed that he was discriminated against on the bases of race (African-American), sex (male), disability (blindness), age (D.O.B. 8/21/51), and in reprisal for prior EEO activity when:
in April 2002, he was not provided assistance in the application process, and he was not considered for a Secretary position in Small Business.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested that the agency issue a final decision.
In its July 22, 2005 final decision, the agency found that in regard to complainant's claim that he was not provided assistance in the application process, he was not denied reasonable accommodation. Specifically, the agency found that the vacancy announcement for the Secretary position was internal; that the agency was not required to provide complainant with assistance in the application process; and that complainant was not denied reasonable accommodation when he was not advised of the Secretary position or any other position open solely to internal candidates.
Regarding complainant's claim that he was not considered for a Secretary position, the agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1), on the grounds that the matter raised therein addressed the same claim that was raised in a prior EEO complaint (identified as Agency TD 02-4282). As to the merits, the agency found that complainant failed to establish a prima facie case of race, sex, age, disability and reprisal discrimination.
The record reflects that in regard to complainant's claim that he was not provided assistance in the application process, the Personnel Specialist (Specialist) stated that an assistant (A1) informed her that she (A1) was upset following her telephone conversation with complainant because he was rude to her. The Specialist stated that A1 indicated that complainant wanted her to read the entire Career Opportunity Listing to him and "since it is hundreds of pages long and is only for internal applicants, she didn't do that." The Specialist stated that A1 asked her if she had done anything wrong because complainant was upset with her "because she wouldn't do what he asked." The Specialist stated that she asked A1 if complainant was an external applicant "and she said yes. I told her he needed to check the USA jobs website at www.usajobs.gov or call the number for USA jobs for information on vacancies open to external applicants." The Specialist stated that her office in St. Paul only services Taxpayer Advocate Offices nationwide and that "Taxpayer Advocate did not currently have any jobs posted for the St. Paul area." The Specialist stated that according to A1, complainant indicated an interest in employment in the St. Paul area only. The Specialist stated that she concurred with A1 that complainant's request "was not a reasonable request because the announcements he was asking her to read were posted for internal applicants, and he was not currently working for the IRS."
The record reflects that a Human Resources Specialist (S1) stated that complainant did not ask her or someone else to read the vacancy announcement to him. S1 further stated that during the relevant time, there were no external vacancy announcements open. S1 stated that she advised complainant to use the Office of Personnel Management's USA Jobs call-in service "to hear about posted vacancies." S1 stated that complainant informed her that he did not want "to avail himself of this service." S1 stated "when I sent him a copy of the Secretary position description, I asked if he wanted me to print that in large print. He responded 'No, I have people helping me.'" Furthermore, S1 stated that complainant informed her that he had someone helping him with his job search and with the preparation of his application forms.
In regard to complainant's claim that he was not considered for the Secretary, Office Automation GS-5 position, the record reflects that the Area 9 Director (Director) stated that his sole involvement with the hiring and selection process of the subject position was limited "to reviewing the essential functions specific to this Secretary position as it related to accommodating a totally blind individual's ability to perform the tasks of the position." The Director further stated he received complainant's Schedule A application from his staff assistant for review and consideration "as I have oversight of the hiring process in SB/SE Compliance Area 9."2 The Director stated that upon receipt of complainant's application, he reviewing the position description for the Secretary, GS-5 position to determine if a reasonable accommodation could be afforded to complainant "which would enable him to perform the essential functions of the position." The Director stated that complainant's qualifications and job skills as specified in his application were also taken into consideration during the review process. The Director stated "my review concluded that the agency could not reasonably accommodate [complainant] for this Secretary position."
Further, the Director stated that in its memorandum to [Human Resources Specialist (S2) at the agency's Ogden, Utah Personnel Office] dated August 1, 2002, he outlined the various duties of the Secretary position and "concluded that : 'In order to accomplish the many varied tasks of the Secretary position, a totally blind person would need to have someone do the proofreading and read all of the information that is needed to do the computer system inputs of inventory items, statute updates, status code updates, etc. That means someone else, not the individual with the disability, would be performing the essential functions of the Secretary position.'"
The record reflects that S2 stated that the agency's Ogden, Utah personnel office keeps Schedule A applications on file for one year, and then submits them to management for consideration when a vacancy is announced. S2 further stated that on May 14, 2002, she forwarded complainant's Schedule A application to [an identified agency official] who was hiring a Clerk in Minnesota but the vacancy was not filled externally due to a hiring freeze. S2 stated that on July 15, 2002, she forwarded complainant's application to the Area 9 Staff Assistant for consideration "as they had a GS-5 secretarial vacancy." S2 stated that the Staff Assistant subsequently forwarded the application to the Director "to determine if [Complainant] could perform the essential functions of the position with or without reasonable accommodation." S2 stated that on August 2, 2002, she received the Director's memorandum wherein he determined that complainant would not be able to perform the essential functions of the secretary position with or without reasonable accommodation. S2 stated that the Human Resources Office then sent complainant notification that he was not selected for the position.
The record reflects that the Selecting Official (SO) for the subject position stated that he did not receive complainant's Schedule A application or the Director's August 1, 2002 memorandum. SO stated, however, that if the Director's review of complainant's Schedule A application "resulted in a determination that [Complainant could not perform the essential duties of the position with or without reasonable accommodation, then I must conclude that no further consideration was given to [Complainant's] application with regards to this vacancy, and Human Resources Division would therefore not have forwarded [Complainant's] Schedule A application to me to be considered along with the other applicants' on the OPM's Certificate of Eligibles." SO further stated "as such, I was never in a position to consider [Complainant's Schedule A application, and I made my selection for the vacancy solely from the OPM's Certificate of Eligibles."
As an initial matter we note that, as this is an appeal from a final 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 EEOC Management Directive 110, Chapter 9, VI.A. (November 9, 1999) (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").
Non-selection Claim
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) further provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or the Commission.
Regarding complainant's claim that he was not considered for a Secretary position in Small Business. The Commission determines that this matter was previously raised in a prior EEO complaint identified by the agency in its final decision. We further find that the record reflects that complainant previously filed formal EEO complaints on August 28, 2002 and February 28, 2003, identified as Agency No. TD 02-4282. This prior consolidated complaint addressed complainant's claims that he was not selected for several clerical/secretarial positions with the agency. Specifically, complainant claimed that he was not selected for two GS-5 Secretary positions advertised under Vacancy Numbers: CT-1503-10-POD and CT-1574-51. Therefore, the agency properly dismissed complainant's non-selection claim for stating the same claim that has been decided by the agency or the Commission.
Because we affirm the dismissal of the non-selection claim for the reason stated herein, we find it unnecessary to address the disposition of this claim on the merits, as addressed by the agency in its above referenced final decision.
Reasonable Accommodation Claim
For purposes of analysis only, and without so finding, the Commission will assume that complainant, who is visually impaired, is an individual with a disability.
The sole question remaining is whether the agency met is legal obligation under the Rehabilitation Act to reasonably accommodate complainant in the application process.3 The Commission acknowledges that agency employees did not read entire Career Opportunity Listings to complainant over the telephone, as he had requested, assessing that the announcements in question were posted for internal applicants, and complainant was not a current agency employee. However, complainant was advised to employ the Office of Personnel Management's call in service to hear of posted vacancies; was sent a copy of a position description and was asked if he wanted the description printed in large print. The record supports a determination that, in an effort to accommodate complainant .
Finally, to the extent that complainant is correct that the agency did not follow the Office of Personnel Management's procedures for considering Schedule A applicants, such actions in the present case do not reflect that they were undertaken with discriminatory animus.
For the reasons stated herein, the Commission AFFIRMS the agency's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 5, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the above referenced appeal number.
2 A "Schedule A" appointment is a non-competitive appointment authority for persons with disabilities.
3 "Reasonable Accommodation" describes modifications or adjustments to a job application process that enables a qualified applicant with a disability to be considered for the position such qualified applicant desires. Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (1999) (Enforcement Guidance).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120055468
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120055468