0120083773
06-11-2010
Marvin Porter, Complainant, v. Philip N. Hogen, Chairman, National Indian Gaming Commission, Agency.
Marvin Porter,
Complainant,
v.
Philip N. Hogen,
Chairman,
National Indian Gaming Commission,
Agency.
Appeal No. 0120083773
Agency No. OS-07-0271
DECISION
On September 3, 2008, complainant filed an appeal from the agency's August
11, 2008 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). For the following reasons, the Commission AFFIRMS
the agency's final decision.
ISSUE PRESENTED
The issue presented is whether complainant established that he was
subjected to discrimination on the bases of race (African-American),
disability (blindness), age (55), and reprisal (for current EEO activity).
BACKGROUND
At the time of events giving rise to this complaint, complainant was an
applicant for the position of Administrative Assistant, AD-0303-GS-5,
advertised under Vacancy Announcement No. NIGC-07-01, at the agency's
office in St. Paul, Minnesota. Report of Investigation (ROI), Exh. 2,
at 24. The Vacancy Announcement stated that applicants should mail
their applications to the agency's Washington, D.C. office between
October 6, 2006 and November 6, 2006. Id. at 24, 26. In addition,
the Vacancy Announcement listed the following qualification for the
position: "knowledge of office procedures, including but not limited to
word processing, data entry, copying and faxing, keeping inventory and
ordering supplies, etc. Must be capable of developing a good working
relationship with others and making decisions with minimum supervision."
Id. at 24-25.
In October 2006, prior to the November 6, 2006 closing date listed in
the Vacancy Announcement, a three-member selection committee began
evaluating the applications. ROI, Aff. B, at 3. The selection
committee consisted of the Regional Director, who was the Selecting
Official (SO), and two Senior Field Investigators. Id. First, the
SO reviewed all the applications received and established a list of
applicants that appeared to satisfy the position requirements listed in
the Vacancy Announcement. Id. Next, the SO asked the committee members
to review the applications on the list and offer their comments. Id.
After receiving their feedback, the SO scheduled interviews with eight
applicants.1 Id.; ROI, Exh. 5, at 1-2.
On October 30 and 31, 2006, the SO and the committee members interviewed
six applicants for the position. Id.; ROI, Aff. D, at 2; ROI, Aff. G,
at 2. After each interview, the SO and the committee members discussed
the applicant. ROI, Aff. D, at 2-3; ROI, Aff. G, at 2-3. The committee
members were not involved in the SO's final decision. Id. On October
31, 2006, the SO submitted a Personnel Action Request Form to hire
the selectee. ROI, Exh. 4, at 1.
On November 3, 2006, complainant mailed his application to the agency's
St. Paul office, even though the Vacancy Announcement instructed
applicants to submit their materials to the Washington, D.C. office.
ROI, Exh. 2, at 28-29. Complainant's application package included an
October 31, 2006 cover letter describing his qualifications for the
position, his need for a reasonable accommodation if hired, and his
qualification for selection under a Schedule A non-competitive hiring
authority for persons with disabilities. Id. at 1. In addition, the
application package included an October 31, 2006 letter addressed to
the Handicapped Program Coordinator in which complainant wrote, "Please
consider me for any clerical position(s) you may have, as I believe this
letter will make you aware of my disability and need for accommodation,
thus triggering the interactive process between the employer and me."
Id. at 4.
On November 6, 2006, the Administrative Assistant (AA)2 at the St. Paul
office signed a certified-mail receipt showing that complainant's
application package had been received. Id. at 31. The SO attested that
he was not aware that the AA had signed for complainant's application
until the instant complaint was filed. ROI, Aff. B, at 3. In addition,
the SO attested that all the applications should have been forwarded to
him for his review, but that he never saw complainant's application. Id.
On May 3, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the bases3 of race (African-American),
sex (male), disability (blindness), age (55), and reprisal (for current
EEO activity). A fair reading of the record reflects that the instant
complaint is comprised of the following two claims:
1. on December 11, 2006, he became aware that he was not selected
for the position of Administrative Assistant, as advertised under Vacancy
Announcement No. NIGC-07-01; and
2. after November 3, 2006, he was denied reasonable accommodation
when the agency did not select him for the Administrative Assistant
position, search for and notify him of suitable available positions
(with the agency or with another agency), or automatically refer his
application under Schedule A to consider him for such positions.
In a letter dated September 11, 2007, the agency identified only claim 1
(without the basis of reprisal) for processing and notified complainant
that he had to submit a written statement to the agency within 15
calendar days of his receipt of the letter if he was not satisfied with
the allegation accepted. ROI, at 60. In a letter dated September 30,
2007, complainant informed the agency that the accepted allegations should
include claim 2 and the basis of reprisal. Id. at 204. The agency did
not respond to complainant's letter and proceeded to investigate claim
1 as the sole issue in complainant's complaint.4 Id. at 9.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
Specifically, the agency found that complainant was unable to state a
claim regarding his non-selection because, as complainant's application
was either lost or misplaced by the agency, there was no evidence that the
selection committee was aware of complainant's interest in employment at
the time. Agency's August 11, 2008 Final Decision (FAD), at 4. Regarding
complainant's allegations regarding his entitlement to a position under
the Schedule A hiring authority, the agency found that, absent a showing
of discriminatory intent, it was an issue to be brought under Office of
Personnel Management procedures. Id. The agency then assumed, arguendo,
that the selection committee was aware of complainant's interest in the
position at issue and proceeded on the merits of the complaint. Id.
The agency found that the selection committee had articulated legitimate,
nondiscriminatory reasons for the selection of the selectee; namely,
the SO believed that the selectee would enhance the atmosphere in the
office because she would get along and work well with people, take
directions, and handle criticism. Id. at 3. Further, the agency
found that complainant had not demonstrated that his qualifications
were observably superior to the selectee's or that the selection
committee's reasons were merely a pretext for discrimination. Id.
Finally, the agency found that complainant did not establish that the
agency's mishandling of his application was motivated by discrimination.
Id. at 5.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the agency's explanation that
his application was lost or misplaced was a "post hoc rationalization"
invented by the agency to conceal unlawful discrimination. Complainant's
September 5, 2008 Appeal Brief, at 3. According to complainant,
the agency received his application, chose to put it aside without
reviewing it, and then destroyed it afterwards to hide the fact that his
non-selection was discriminatory. Id. In addition, complainant asserts
that there is evidence of pretext because there was no evidence that
the selectee was more qualified, the selectee was pre-selected by the
SO, and the selection decision was based on subjective criteria. Id.
Further, complainant asserts that his complaint is also one of failure
to accommodate because the agency has failed to engage him in a dialogue
about possible accommodations such as the provision of special equipment,
reassignment to another position (with the agency or with another agency),
or notification of subsequent vacancies within the agency. Id. at 1-2.
Finally, complainant asserts that he should have been hired for the
position or for other positions via the Schedule A hiring authority.
Complainant's December 7, 2008 Appeal Brief, at 1.
In response, the agency argues that the circumstances and timing of the
events in this matter establish that it did not act with discriminatory
animus in regard to complainant's non-selection; specifically, the
selection was made before the complainant submitted his application.
Complainant's January 12, 2009 Appeal Brief, at 10. The agency submits
an October 31, 2006 email from the SO to the Personnel Specialist
stating that he had selected the selectee for the position. Id.,
Exh. A. In addition, the agency argues that it did not fail to provide
complainant with a reasonable accommodation during the hiring process
because the hiring process was completed before complainant submitted
his application. Id. at 11. Further, the agency argues that, as an
agency with less than 1,000 employees, it is not mandated to use and
has never used the Schedule A hiring authority. Id. at 12.
ANALYSIS AND FINDINGS
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 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").
Claim 1 - Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
As an initial matter, we note that while the selection decision occurred
on October 31, 2006, complainant did not mail his application until
November 3, 2006 and it was not received by the agency until November
6, 2006. ROI, Exh. 2, at 28-29; ROI, Exh. 4, at 1. Assuming, arguendo,
however that complainant established a prima facie case of discrimination
on the bases of race, sex, disability,5 age, and reprisal, the Commission
finds that the agency articulated a legitimate, nondiscriminatory reason
for his non-selection. Specifically, the SO attested that the selectee
met the majority of the job requirements and was, in his opinion, the
"best fit" for the office. ROI, Aff. B, at 4, 8. The SO explained that a
"good fit" meant someone who could get along and work well with people,
be able to take directions, and be able to handle criticism. Id. at 8.
The SO and the committee members attested that, in addition to the basic
requirements of the position, effective interpersonal communication,
attitude, and teamwork were important factors during the selection
process. They explained that the former AA was rude and unhelpful to
Tribal leaders on the telephone, was counseled numerous times by upper
management about her attitude, and created an unpleasant and dysfunctional
office environment. ROI, Aff. B, at 8; ROI, Aff. D, at 2-3; ROI, Aff. G,
at 2-3. One committee member emphasized that it was important that the
same type of employee was not hired again. ROI, Aff. D, at 2-3.
Because the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reason is a pretext for
discrimination. In an attempt to show pretext, complainant argues that
the agency intentionally ignored his application during the selection
process, the selectee was pre-selected, and the selection was based
on subjective criteria. Complainant's September 5, 2008 Appeal Brief,
at 3.
In this case, we find that complainant has failed to provide evidence that
his non-selection rested on discriminatory intent. In nonselection cases,
pretext may be found where complainant's qualifications are demonstrably
superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). Here, the Commission finds that complainant has not made
this showing.
Regarding complainant's argument that the agency intentionally ignored
his application during the selection process, the record clearly shows
that the relevant events occurred as follows: the SO made the selection
decision on October 31, 2006, complainant mailed the application on
November 3, 2006, and the former AA signed for the application on November
6, 2006. ROI, Exh. 2, at 28-29; ROI, Exh. 4, at 1; Agency's January 12,
2009 Appeal Brief, Exh. A. As complainant had not even submitted his
application at the time the selection decision was made, we find that
this argument is without merit. We note that a procedural irregularity
occurred in the selection process when the October 31, 2006 selection
was made prior to the November 6, 2006 closing date, but there is no
evidence that the procedural irregularity was due to discrimination.
Regarding complainant's argument that the selectee was pre-selected,
while we are not convinced that pre-selection occurred, we note that we
have held that pre-selection, per se, does not establish discrimination
when it is based on qualifications of the selected individual and not
some prohibited basis. McAllister v. United States Postal Service, EEOC
Request No. 05931038 (July 28, 1994). Because we find that complainant
has failed to offer probative evidence demonstrating that the agency's
selection decisions was based on prohibited bases under Title VII,
the Rehab Act, or the ADEA, we find that, even if the selectee was
pre-selected, no discrimination occurred. Ultimately, the agency has
broad discretion to set policies and carry out personnel decisions, and
should not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997).
Regarding complainant's argument that the selection was based on
subjective criteria, the Commission has recognized that the use of
subjective criteria in the hiring and promotion process may offer a
convenient pretext for unlawful discrimination. Wilson v. United States
Postal Service, EEOC Request No. 05921062 (August 12, 1993). On the
other hand, the use of subjective criteria is not, in and of itself,
an indicator of discriminatory motivation. Fodale v. Department of
Health & Human Services, EEOC Request No. 05960344 (October 16, 1998).
The record shows that communication skills, personality, and teamwork
were factors in the selection because of the negative experience the
St. Paul office had with the former AA. ROI, Aff. B, at 8; ROI, Aff. D,
at 2-3; ROI, Aff. G, at 2-3. We find that complainant has failed to
offer persuasive evidence or argument to show that this particular
selection was conducted with a discriminatory or retaliatory motive.
Claim 2 - Reasonable Accommodation
Regarding applicants for employment, the Commission's policy states,
"An employer must provide a reasonable accommodation to a qualified
applicant with a disability that will enable the individual to have
an equal opportunity to participate in the application process and
to be considered for a job (unless it can show undue hardship)."
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, No. 915.002, Question 13 (as
revised October 17, 2002). For purposes of analysis only, we assume,
arguendo, without so finding, that complainant is an individual with a
disability entitled to coverage under the Rehabilitation Act.
To the extent that complainant alleges that he was denied a reasonable
accommodation during the application and hiring process for the
Administrative Assistant position, we find that complainant has not shown
that he was denied a reasonable accommodation. The record reflects that
the selection occurred on October 31, 2006 and complainant submitted his
application on November 3, 2006. ROI, Exh. 2, at 28-29; ROI, Exh. 4,
at 1; Agency's January 12, 2009 Appeal Brief, Exh. A. The application
and hiring process, and therefore the agency's obligation to provide a
reasonable accommodation to complainant, an applicant, effectively ended
on October 31, 2006.
To the extent that complainant claims that he was denied reasonable
accommodation when the agency failed to search for and notify him of
suitable available positions (with the agency or with another agency), or
automatically refer his application under Schedule A to consider him for
such positions, we find that complainant has not shown that the agency
was obligated to conduct such searches, notifications, or referrals
on his behalf. Although the agency is authorized to use the Schedule
A hiring authority when considering certain people with disabilities,
the use of this authority is not mandatory. ROI, Exh. 8, at 2-3, 5; see
generally 5 C.F.R. � 213.3102(u). The agency has explicitly stated that
it has never used or adopted the use of the Schedule A hiring authority.
Agency's January 12, 2009 Appeal Brief, at 12.
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.
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
June 11, 2010
Date
1 Two applicants subsequently cancelled their scheduled interviews.
ROI, Exh. 5, at 1-2.
2 The AA reported directly to the SO and was responsible for the receipt
of all incoming correspondence. ROI, Aff. B, at 2. She retired from the
agency on November 6, 2006, the same day that she signed for complainant's
application package. Id. at 7.
3 Complainant had initially included color (black) as a basis of his
complaint, but subsequently withdrew that basis in his affidavit. ROI,
Aff. A, at 2.
4 As the record does not include the proof of receipt date for the
agency's September 11, 2007 letter of acceptance and complainant's
response is dated September 30, 2007, we find it probable that complainant
did respond within 15 days of his receipt of the letter. Accordingly,
we will address claim 2 in this decision.
5 According to 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); see Appendix. For purposes of this
analysis, we assume, without so finding, that complainant is an individual
with a disability.
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0120083773
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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