Marvin Porter, Complainant,v.Mike Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 30, 2009
0120081237 (E.E.O.C. Oct. 30, 2009)

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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0120081237