Matt B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120172824 (E.E.O.C. Dec. 11, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Matt B.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Rural Development),
Agency.

Appeal No. 0120172824

Agency No. RD201400233

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 28, 2017
final decision concerning an equal employment opportunity (EEO) complaint claiming
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Loan Specialist, GS-12, at the Agency’s
Rural Development Division in Rapid City, South Dakota.

On March 31, 2014, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him based on disability (multiple sclerosis)2 when:

on an unspecified date after December 31, 2013, Complainant learned that he was
either not considered and/or selected for the GS-1101-13 Finance and Loan

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

2 For purposes of analysis only, the Commission has presumed, without so finding, that
Complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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Analyst position, which was advertised under Vacancy Announcement Number
DC-2014-0003, under a Schedule A appointment.3

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge or a final decision within thirty days of receipt of the correspondence. Complainant
requested a final decision. However, the Agency failed to issue a decision within 60 days and
Complainant appealed to the Commission. On June 2, 2017, the Commission remanded the
appeal to the Agency to issue a decision within 30 days. Complainant v. United States
Department of Agriculture, EEOC Appeal No. 0120151072 (June 2, 2017).

On June 28, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant argues that the Agency did not consider or
accept his Schedule A application until after the hiring decision/selection was made.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health

3 Schedule A is an excepted service hiring authority federal agencies can use to hire and promote
individuals with disabilities.

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and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant submitted an application for the Finance and Loan Analyst position at issue on
December 6, 2013. He concedes that he filed it after the November 25, 2013 closing date on the
vacancy announcement, but asserts that under Schedule A hiring authority for individuals with
disabilities, he was allowed to apply for the position beyond the closing date as long as a final
selection had not been made.

Email correspondence indicates that an Agency Human Resources (“HR”) Specialist informed
Complainant on December 9, 2013 that she could not accept his application because he did not
submit his application within deadline. The HR Specialist also stated that she was “in the process
of rating the applicants.”

Complainant contact the Agency’s Special Placement Program Coordinators (SPPC), who
confirmed his understanding that, as a Schedule A applicant, he was entitled to consideration
beyond the closing date unless the vacancy had been filled. Complainant forwarded the response
from the SPPC to the HR Specialist and asked that his application be considered.

The HR Specialist stated after she received clarification from Headquarters due to a
“misunderstanding of the Schedule A regulation,” she forwarded Complainant’s application to
the Selecting Official for consideration.

Email correspondence, dated January 8, 2014, from the Selecting Official to the HR Specialist
indicates that the Selecting Official considered Complainant’s application, but determined that
Complainant was not the most qualified candidate “compared to other candidates who have
actually worked in the Section 502 Single Family Housing Loan Programs.”

The Selecting Official further stated that Complainant’s “application was received after the
selection was made.” The Selecting Official stated that she reviewed the applications and
resumes and sought “specific qualifications,” which included creating reports for the National
Office. The Selecting Official stated that she did review Complainant’s qualifications and
determined that he was “not as qualified as the selectees” and did not have experience in running
reports for the National Office.

The record includes copies of the Selectees and Complainant’s resumes indicating that the
Selectees had prior work experience in the single-family housing programs.

Having reviewed the record, we find that the evidence supports that the Agency’s handling of
Complainant’s application was attributed to it Human Resources personnel’s misunderstanding
of Schedule A regulations and was not based on Complainant’s protected bases. Moreover, the
record indicates that the Selecting Official did eventually consider Complainant’s application,
but found him to be lacking in the qualifications believed important for the position. The record
supports a finding that the eventual selectees possessed these qualifications.
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After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on his
disability.

Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 11, 2018
Date