Matt B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency.Download PDFEqual Employment Opportunity CommissionDec 11, 20180120172824 (E.E.O.C. Dec. 11, 2018) Copy Citation 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. 0120172824 2 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. 0120172824 3 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. 0120172824 4 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). 0120172824 5 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 Copy with citationCopy as parenthetical citation