0120081237
10-30-2009
Marvin Porter, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Marvin Porter,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081237
Agency No. 7S0M06002
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 27, 2007, 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.
Complainant alleged that the agency discriminated against him on the
bases of race (African American), sex (male), disability (blindness), age
(54), and in reprisal for prior protected EEO activity when (a) he was not
provided a reasonable accommodation during the application process; and
(b) he was not interviewed or selected for the position of Administrative
Personnel Assistant (Office Automation), advertised in February 2006,1
under Schedule A appointing authority. Following an investigation,
the agency advised complainant of his right to request either a hearing
before an EEOC Administrative Judge or an immediate final agency decision
(FAD). When complainant did not respond, and the agency issued a FAD,
finding that it did not discriminate against complainant.
In January 2006, complainant sent his r�sum� to the agency's Air Force
Reserve Command, in Minneapolis, Minnesota, requesting an interview
as a reasonable accommodation, even though no positions were available
at that time. The personnel office (PO) informed him that all agency
civilian personnel activity, including applications under Schedule
A, was centered at Randolph Air Force Base, Texas, at the Air Force
Personnel Center (AFPC). She provided complainant contact information,
including a toll-free telephone number, and an agency job kit; she
advised him that specialists at AFPC would assist him in establishing
a file and that, once his record was on file, AFPC would assist him in
applying for vacant positions.2 As to interviews, the PO informed him
that interviews were conducted at the option of the selecting official
(SO), after processing through AFPC and creation of a list of eligibles.
When a vacancy announcement was posted for the position of Administrative
Personnel Assistant (Office Automation) in February 2006, complainant
again called the PO, asking that his January 2006, r�sum� be considered
his application for the open position. The PS again informed him that he
must initiate all hiring activity through AFPC. After the announcement
closed, the agency reviewed the application and certified 63 candidates
qualified for the position. Complainant never contacted AFPC and, thus,
he was not considered for the position; the selectee chosen was a White
male, age 43, disability status unknown.
Complainant requested EEO counseling on February 7, 2006, the day after
he learned of the vacancy, and filed his formal complaint on March 2,
2006. He contended that the agency failed to provide him a reasonable
accommodation when it refused to grant him an interview and discriminated
against him when he was not selected for the position. In his several
appeal statements, of relevance to the issue before us, he stated that
he sought hiring through Schedule A and that, once he sent his r�sum� to
the PO in Minneapolis, the agency was obligated to contact him when a
job for which he was qualified became available. The agency contended
that it provided complainant with a reasonable accommodation, in that,
it presented him the job kit and telephone number for AFPC and advised him
that AFPC representatives would assist him in creating a file record and
a verified r�sum�; his failure to do so precluded him from consideration
for the position, under any hiring authority, including Schedule A.3
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
The analysis of claims claiming disparate treatment is patterned after the
three-step scheme announced in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Once the complainant has established a prima
facie case or assuming that he or she does so, the agency is required
to articulate a legitimate, nondiscriminatory reason for its actions.
To prevail, a complainant must demonstrate, by a preponderance of the
evidence, that the agency's reason(s) for its action was a pretext for
discrimination, i.e., that the agency's reason was not its stated reason
and that it acted on the basis of discriminatory animus. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). For purposes of further analysis only, we assume, arguendo, and
without finding, that complainant established that he is an individual
with a disability and is entitled to coverage under the Rehabilitation
Act and that he established a prima facie case of discrimination on all
bases alleged.
Complainant contended that the agency failed to provide him a reasonable
accommodation and also that he was treated less favorably than other
similarly situated persons not of his protected classes, i.e., race,
age, sex, or with prior EEO activity. In regard to this claim, we find
that the agency provided complainant a reasonable accommodation when it
referred him to AFPC to enable him to obtain assistance to establish
a file and complete his verified r�sum�. There is no evidence that
others were allowed to bypass AFPC and were hired. A complainant is not
entitled to his or her choice of reasonable accommodation, so long as
the accommodation provided by the agency is effective. See RA Guidance,
Question 9.
Complainant did not comply with the agency's application procedures,
did not file an application, and was not considered for the position.
We find there is no evidence in the record, nor has complainant shown,
that another applicant who did not file an application was treated more
favorably and considered for the position. It is axiomatic that, if a
complainant fails to apply for a position, he will not be regard as an
applicant or placed on the agency's list of eligible candidates; if he is
not on the agency's list, he cannot be considered for appointment. Absent
extreme circumstances, a candidate who does not follow the correct
application procedures may be eliminated from consideration for the
position without raising an inference of discrimination. See Ozinga
v. Department of Veterans Affairs, EEOC Request No. 05910416 (May 13,
1991) (non-selection where claimant failed to apply states a claim only
in limited circumstances).
We find that complainant failed to refute the agency's legitimate,
nondiscriminatory reasons for its actions and to demonstrate that the
agency's reasons were not true or based on illegal considerations of
disability, race, age, sex, or reprisal or that the agency failed
to provide him a reasonable accommodation as required under the
Rehabilitation Act.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, 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 as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
October 30, 2009
Date
1 Complainant's prior EEO activity did not include EEO activity at the
agency; however, he filed multiple complaints against other federal
agencies and, aside from this matter, has four open appeals pending
against three agencies.
2 According to the AFPC website, the agency provides r�sum� writing
assistance for applicants and other services.
3 We note that the Vacancy Announcement for the position stated that
the position was open to, inter alia, people with disabilities. It also
stated that interested applicants must contact AFPC.
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0120081237
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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