0120170221-2
09-19-2018
Mike S.,1 Complainant, v. Emily W. Murphy, Administrator, U.S. General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mike S.,1
Complainant,
v.
Emily W. Murphy,
Administrator,
U.S. General Services Administration,
Agency.
Appeal No. 0120170211
Agency No. GSA15COA0136
DECISION
On October 21, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 22, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant was discriminated against when he was not selected for the position Program Analyst.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Marketing Specialist GS-0301-13 at the Agency's Office of Communicating and Marketing facility in Washington, D.C. On November 24, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (physical and mental), and reprisal when he applied but was not selected for the position of Program Analyst GS-0343-13/14. Complainant worked for the Agency and contributed research and recommendations concerning telework policy, including telework policy as a reasonable accommodation for employees with substantial limitations to major life activities. Complainant's recommendations also included how the Agency could avoid liability and serve the employees' needs at the same time. Complainant's research provided a review and assessment of problematic or potentially controversial situations around telework for those with diverse abilities.
Complainant, along with others, applied for the position at issue. The duties for the GS 13 position required that the incumbent: (1) serve as a coordinator and representative for the supervisor for major program issues and meetings; (2) participate in the review of program activities to identify problems and recommend corrective measures or alternative approaches for implementation by Central Office management officials; (3) plan, organize, coordinate administer and evaluate implementation of all aspects of the program(s) for assigned areas of responsibility; (4) be responsible for managing information and data relative to the Top-to-Bottom effort; (5) review business metrics and assessing the results in comparison to the Administrator's stated goals; and; (6) assist in developing a business transformation framework to enable cross-enterprise service delivery.
The qualifications included specialized experience in: (1) providing input to policy development and/or implementation; (2) providing technical advice to personnel and reviewing and/or assessing problematic situations; (3) implementing decisions made by higher level management; (4) reviewing and/or preparing technical reports and/or papers which have widespread impact in term of current and/or future programs; and/or (5) providing timely, short term deliverables to support decision-making.
The duties for the GS-14 position were: (l) provide significant information to top management officials at the headquarters level; (2) provide opinions to other personnel within or outside the agency who also hold a high degree of subject knowledge; (3) provide technical expertise to GSA personnel and be called upon to review and/or assess problematic or potentially controversial situations which are extraordinary, unique or otherwise contentious in nature; (4) implement decisions made by higher level agency management officials, oftentimes facilitating the work of other agency employees to accomplish desired objectives; and (5) ensure decisions are reflected legislative policy proposals, in internal and external directives and subsequently, in organizational operating procedures.
The qualifications included specialized experience in: (l) providing input to policy development and/or implementation at the agency/company headquarters; (2) providing technical advice to agency/company personnel and reviewing and/or assessing problematic situations; (3) implementing decisions made by higher level management officials requiring facilitating the work of other employee; (4) reviewing and/or preparing highly technical reports and/or papers on important and extremely complex matters which influence not only the immediate work group, but which have widespread impact in term of current and/or future programs; and/or (5) providing timely, short term deliverables to support decision-making as part of the business transformation framework.
Complainant was not selected. The Selecting Official stated that the most important criteria in selecting the Program Analyst was a "fundamental understanding of the FAS (Federal Acquisition Service) organizations and its strategic direction and the ability to provide expert advice to senior leadership and implement decisions." The Selecting Official found that, during the phone interview, Complainant did not demonstrate the ability to meet these criteria nor did he conclude that Complainant demonstrated a "working knowledge" of the goals or efforts that would enable him to serve as an "effective liaison with stakeholders."
The Selecting Official stated that W1, the selectee for the position, demonstrated the knowledge and understanding of GSA clients, programs and business practices, specifically with a focus on procurement policy. She had prior experience with the requirements of the positon. The Selecting Official concluded that W1 demonstrated the ability to provide program and policy analysis on procurement issues, and demonstrated an understanding of the FAS organization and its strategic direction.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. 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 the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant, in pertinent part, reiterated his claim that he was discriminated against with respect to his non-selection and maintained that the Agency fragmented his claim by not allowing him to amend his complaint to include a constructive discharge claim.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of our analysis, we will assume, arguendo, that Complainant established prima facies cases of discrimination based on sex, disability and reprisal. Likewise, we also find that the Agency articulated a legitimate, non-discriminatory reason for selecting W1 and not selecting Complainant. Even considering Complainant's significant accomplishments in other areas of the Agency, he did not demonstrate the ability to meet the criteria for the position at issue, nor did he demonstrated a working knowledge of the goals or efforts that would enable him to serve as an effective liaison with stakeholders. The Agency found that W1 demonstrated the knowledge and understanding of GSA clients, programs and business practices, specifically with a focus on procurement policy. She had prior experience with the requirements of this positon.
In a non-selection case, such as this, Complainant may show that an employer's reason for the non-selection was pretext for discrimination by demonstrating that his qualifications were "plainly superior" to those of the selectee. Wasser v. Dept. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); See also Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) ("differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff for the job in question"); See also Burdine, 450 U.S. at 259 (noting that in making hiring or promotion decisions, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria). In the instant case, Complainant did not establish that his qualifications were plainly superior to W1.
Finally, we do not find that the Agency erred in processing Complainant's constructive discharge claim as a mixed case and subsequently providing Complainant with appeal rights to the Merit Systems Protection Board (MSPB).2 The Agency's actions were consistent with Commission policy and recent precedent.
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 (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).
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
___9/19/18_______________
Date
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 The MSPB dismissed Complainant's appeal for lack of jurisdiction on September 12, 2017. In a decision dated November 30, 2017, the Commission ordered the Agency to process Complainant's constructive discharge claim.
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