01a50740
08-11-2006
Marvin Porter, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Marvin Porter v. Department of Agriculture
01A50740
August 11, 2006
.
Marvin Porter,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A50740
Agency No. 030184
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful 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.
BACKGROUND
The record reveals that during the relevant time, the agency advertised
two vacancies for an Office Automation Assistant, GS-326-05/05, at its
Human Resources Field Office (HRFO), Food Safety and Inspection Services
(FSIS), in Minneapolis, Minnesota. Complainant contacted the agency
regarding the vacancies and spoke with the Supervisory Management Analyst,
the Selecting Official (SO), and the Human Resource Specialist, Person B,
about the position. Complainant advised them that he was blind and would
be applying for the position under the special appointment authority for
severely handicapped personnel. On April 6, 2002, complainant submitted
his on-line application for the Office Automation Assistant position
under a Schedule A noncompetitive appointing authority. Complainant was
one of five initial applicants for the position. The agency determined
that two of the applicants were deemed not eligible for consideration
because of missing documentation and residency outside the commuting area.
Three applicants, including complainant, were listed on the Certificate
of Eligibles. Effective July 14, 2002, a 22-year old female with no
known disabilities was selected. Prior to her selection, the Selectee
had been an Office Automation Clerk, GS-4, under the SO's supervision.
The agency did not fill the second vacancy due to budgetary constraints.
Complainant sought EEO counseling and subsequently filed a formal
complaint dated November 17, 2002, alleging that he was discriminated
against on the bases of sex (male), disability (totally blind), and age
(D.O.B. 8-25-51), when he was not selected for the position of Office
Automation Assistant.
In her affidavit, the SO stated that she reviewed the applications
of the three people on the Certificate of Eligibles. She stated that
two of the applicants already worked for her. She explained that no
interviews were given to any of the three applicants. She stated that
Selectee had worked for her for three years and had the computer skills
needed to do the job. The SO stated that complainant informed her he
was blind during a telephone conversation and also told her he had no
computer skills. The SO stated the major reason complainant was not
selected was because of his lack of computer skills. The SO stated
that complainant's sex and age were not factors in the non-selection.
The SO stated that complainant's disability was considered because she
�felt that he would not have been able to use the computer system we have
for the telephone system, he would not have been able to enter data into
the computer which we receive from many different sources .�
In her supplemental affidavit, the SO noted that complainant's
application did not reflect any education, training or experience
for processing incoming and/or outgoing mail, arranging for meetings,
the ability or experience to do time and attendance reports, filing
or internet skills. She stated that one of the essential functions of
the Office Automation Assistant position was answering the telephone.
The SO explained the agency uses a computer system to answer and retrieve
calls and noted these calls are entered into a computer system and sent
by the computer system to the person for whom the call is intended who
then answers the phone or retrieves the message from their voice-mail.
She explained that the office receives about 700 requests for information
weekly and noted there are 26 different packets of information that are
pre-assembled and sent out by the office. The SO explained that after
the voice mail message is retrieved, the name and address of the person
is entered into the computer system which automatically generates the
labels and then the appropriate pre-made packet is then put into the
envelope, the label attached and the packet mailed. The SO stated she
thought about contacting the telephone provider to see if there was any
special equipment to help with this function but did not do this because
of other experience complainant did not have.
The SO noted that processing mail is another essential function of
the job. She explained that mail is opened in the main mailroom and
distributed to her department. She stated that her department then
sorts the mail according to the six sections in their unit. Then the
mail is sorted by the employee name and then distributed. She stated
that mail is delivered twice a day. The SO stated she did not think
complainant could go to the mailroom, sort, open and pick up the mail.
She further stated that she �did consider that using the letter opener
might be dangerous for [him] since he could not see.�
The SO explained that her department is also responsible for entering
information into the computer system for employee appraisals. She noted
they receive about 10,000 appraisals a year and that they have to read the
form, enter the data into the computer file, then make a hard copy and put
it into the file and pull out the previous appraisal. The SO stated she
�did not think [complainant] could handle the hard copy record retention
process of putting the new appraisal in the file and pulling the previous
appraisal out� which she stated was an essential function of the job.
Finally, the SO noted the job entails a lot of computer work, which
she stated �takes up most of the clerk's time.� She noted that the
department uses seven different programs to handle appraisals, vacancies,
merit promotion letters, transmittals, FJOB, SF-52's FI and VMO calls.
She noted that �[c]lerks must follow-up the next day to be sure the
appraisals information �took' in the computer.� She characterized this
task as �a visual process� and noted that if the information did not
�take,� it has to be done again. The SO stated she is not familiar with
any equipment that someone who is totally blind might use to do a wide
variety of jobs in this department.
The Human Resource Specialist noted that complainant was listed on the
Certificate of Eligibles for the Office Automation Assistant position.
The HR Specialist noted that although complainant was referred along
with others on the merit promotion certificate, he should have been on
a separate certificate since he qualified under the Excepted Service
Hiring Authority. The HR Specialist stated, however, that the system
was new at the time and they did not have the capability of printing
separate certificates.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its final decision, the agency concluded that complainant failed
to establish a claim of discriminatory non-selection. With regard to
his claims of age and sex discrimination, the agency noted complainant
demonstrated only that he is a member of protected classes (male, over
40), and that he applied for the position in question. The agency stated
that he has not proven that he was substantively qualified for the
position based upon the standards specified in the position description
or vacancy announcement. Further, the agency stated that complainant
failed to prove that the circumstances of his non-selection give rise
to an inference of discrimination.
Specifically, the agency noted that the position description for Office
Automation Assistant, GS-05, states the following knowledge is required by
the position: knowledge of office automation systems to use several types
of software in order to provide varied and advanced office automation;
thorough knowledge of processing procedures and function keys for
performing a substantial range of functions within each software type;
thorough knowledge of office clerical practices and procedures; knowledge
of time and attendance requirements, travel regulations, etc. to make
travel arrangements; basic knowledge of the NFC systems used to input
these documents; thorough knowledge of HRFO and the agency organization,
as well as the responsibilities of personnel within the Branch; and
knowledge of processing procedures and function keys in order to perform
a substantial range of functions within each software type.
The agency stated that based on his application, complainant conceded he
had no training, education or experience in a majority of tasks that are
important, if not essential, to the performance of the job. Regarding
the use of standard word processing and other computer software, which
the agency states are essential components of the position, the agency
noted that complainant conceded that he has performed these tasks only
under close supervision. Thus, the agency concluded that based upon
a comparison of the qualification standards specified in the position
description and the information contained in his application, complainant
has not sustained his burden of proving that he was qualified for the
position at issue and thus, did not state a claim for relief.
The agency stated, however, even if complainant had stated a prima
facie case, it rebutted any inference of age or sex discrimination by
articulating and substantiating a legitimate, nondiscriminatory reason for
its actions. The agency noted that the SO reviewed all three applicants
referred for consideration and chose to promote the Selectee because the
Selectee, a GS-4 Office Automation Clerk, had worked for her for three
years and had the computer skills to do the job. The agency stated
that the second vacancy was not filled due to budgetary constraints.
The agency noted that in an attempt to prove pretext for age and sex
discrimination, complainant challenges the SO's explanation that she
based her decision on the Selectee's computer skills. The agency noted
that complainant argues that he can perform the required computer tasks
with reasonable accommodation because �computers can be made accessible
via reader software that verbally reads information on the screen, or
a refreshing Braille display keyboard attached to the computer that
displays the screen information in Braille� and states �[a]nother
possibility is that the IBM Selectric II or Wheel Writer 5 typewriter
and dictation can be used to process performance appraisals, letters,
memoranda and reports.� The agency found complainant failed to sustain
his burden of proving by a preponderance of the evidence that the SO's
justification of her decision to promote the Selectee is pretext for
age and/or sex discrimination.
With regard to the disability claim, the agency responded to complainant's
claim that since he is otherwise qualified for the position despite his
disability, the agency breached its duty to reasonably accommodate him.
The agency noted that the essential functions of the Office Automation
Assistant position include providing office automation assistance to
a variety of units and sections within HRFO; performing specialized
automation tasks such as preparing memoranda, correspondence, reports,
forms and statistical data; producing visual information products such
as newsletters, brochures, web pages, data entry; filing in a file room
with hundreds of records; and performing mail room duties (sorting,
collating and putting information into packets to be mailed). The agency
found that complainant did not sustain his burden of proving that he is
a �qualified� disabled individual. Specifically, the agency noted that
complainant did not prove that he possesses the necessary knowledge,
skills and abilities to perform the essential functions of the position.
The agency stated that the record supports a finding that the essential
functions of the job include duties that exceed complainant's knowledge,
skills and abilities, including his physical limitations. The agency
stated that because complainant is completely blind and has no experience
using the internet, �it is unrealistic to expect him to produce visual
information products such as newsletters, brochures and web pages.�
The agency also found it �equally unrealistic to expect him to perform
mailroom functions that require visual identification of documents.� The
agency stated that since complainant's application did not demonstrate
that he was qualified to perform the essential functions of the job,
the SO was under no obligation to interview him, or to hire him, or to
accommodate the limitations associated with his disability.
The agency stated that there was no objective evidence that the
decision-making process was biased against complainant or that the final
decision to hire the Selectee was based upon an improper consideration
of complainant's disability. The agency noted that the Selectee's
qualifications were �plainly superior� to those of complainant by
virtue of her three years performing comparable duties as a GS-4, Office
Automation Assistant, under the SO's supervision.
In summary, the agency stated that complainant did not establish a
prima facie case of discrimination on any basis. The agency noted that
complainant's application does not demonstrate that he had at least
fifty-two weeks of specialized experience (such as substantive data
collection, data entry and report preparation) equivalent to at least
the GS-4 level that is in or directly related to the work of a GS-5,
Office Automation Assistant, or equivalent education, as specified in
the vacancy announcement. The agency also reiterated that complainant did
not demonstrate that he has the knowledge, skills and abilities for the
position, including the ability to produce visual information products
such as newsletters, brochures and web pages, as specified in the position
description. Thus, the agency concluded that its articulated legitimate,
non-discriminatory reason for its actions that the SO was seeking someone
with demonstrated computer skills and mailroom experience is credible
and is supported by the documentary evidence.
On appeal, complainant contends that his qualifications are undisputed
since both the Personnel Staffing Specialist and the Human Resources
Manager referred his application to the Selecting Official. Complainant
claims that he should have been afforded an interview. Further, he states
that he is �equally qualified� with the Selectee. Complainant states
the agency did not explain the SO's failure to contact Services for
the Blind regarding possible accommodations before taking an adverse
employment action. Complainant states that the tasks of using the
internet to retrieve letters, filing, and the need to take time and
attendance records are competitive qualifications and the agency failed
to prove that the position could not be restructured to accommodate him.
ANALYSIS AND FINDINGS
We will assume for purposes of our analysis, that complainant is an
individual with a disability; however, we conclude based on a review of
the record, that complainant has not shown he is qualified. A "qualified
individual with a disability" is an individual with a disability who
satisfies the requisite skill, experience, education and other job
related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of the position. 29 C.F.R. � 1630.2(m). In the
present case, the record supports the agency's contention that complainant
did not possess the requisite fifty-two weeks of specialized experience
equivalent to at least the GS-4 level, or equivalent education, as
described in the vacancy announcement. Thus, we find complainant was not
a �qualified individual with a disability� under the Rehabilitation Act.
Assuming arguendo that complainant established a prima facie case of
discrimination based on age and sex, we find the agency has articulated
legitimate, non-discriminatory reasons for its actions. Specifically,
the agency asserts that the Selectee was chosen because she worked for
the SO for three years at the GS-4 level and had the computer skills to
perform the Office Automation Assistant position, GS-5. The SO also noted
that the Selectee was familiar with the phone/computer system used to
answer calls and had relevant experience processing mail and assembling
the 26 packets of information pertaining to the application process.
Complainant has not shown that he was plainly superior to the Selectee
for the Office Automation Assistant position. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence that the SO's justification of her decision
to promote the Selectee is a pretext for age and/or sex discrimination.
Therefore, the agency's final decision is AFFIRMED.
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
August 11, 2006
__________________
Date