01A01098
03-04-2003
Mohan Varthakavi, Complainant, v. Elaine Chao, Secretary, Department of Labor, (Bureau of Labor Statistics), Agency.
Mohan Varthakavi v. Department of Labor
01A01098
03-04-03
.
Mohan Varthakavi,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
(Bureau of Labor Statistics),
Agency.
Appeal No. 01A01098
Agency No. 9-11-021
INTRODUCTION
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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
Complainant, an applicant for Federal employment at the agency's
headquarters in Washington, D.C., filed a formal EEO complaint on October
23, 1998, alleging that the agency discriminated against him on the bases
of race (Asian), national origin (Indian), sex (male), religion (Hindu),
color (brown), and disability (deaf - bilateral profound hearing loss)
when he was not selected for the position of Mathematical Statistician,
GS-1529-7 (Vacancy Announcement DEU-97-21). The position was also
advertised at the GS-9 and GS-11 levels. The Vacancy Announcement (VA)
specified that it was to fill �multiple� GS-7 vacancies. The agency
investigated the complaint and informed complainant of his right to
a hearing. Complainant requested an agency decision on the record,
and the agency subsequently issued a final agency decision (FAD) finding
no discrimination. This appeal followed.
In its final decision, the agency concluded that complainant had not
been discriminated against because no candidate had been selected from
the certificate of eligibles, and that he therefore had been treated no
worse than any other candidate. Complainant argued that he was qualified
for the position(s), and that the agency had scheduled two interviews
with him, both of which were subsequently canceled. When no candidate
was selected, the agency re-advertised the position, at the GS-7 level,
under VA DEU-98-14. Complainant indicated to the agency that he wished
to be considered under DEU-98-14, but the record was unclear regarding
the outcome of that Vacancy Announcement.
On November 18, 2002, the Commission issued an interim order to the agency
directing that it perform a supplemental investigation. The agency was
asked to provide the following information:
1) copies of the application packages of the other candidates from the
certificate of eligibles for the GS-7 position from Vacancy Announcement
DEU-97-21, including information regarding the race, color, national
origin, sex, religion and disability of these candidates (to the extent
possible), as well as any evidence which would demonstrate that the
selecting official(s) did know, or could have known, the status of
complainant's and the other candidates' protected bases;
2) details regarding the method of selection from the certificate of
eligibles, including: whether interviews were held; which candidates
were interviewed, and why; whether an interview or selection panel
was utilized or if a single agency official(s) held interviews; if the
interviews of any other candidates were scheduled and then subsequently
canceled; and the reason(s) why complainant's interviews were canceled,
including affidavits from the selecting official(s) who might have stated
that complainant �did not have enough math courses;� and
3) if complainant re-applied (or in some other way was considered) for
the position under Vacancy Announcement DEU-98-14, and if a selection
of another candidate was made at the GS-7 level, then the application
packages of the candidates considered, including information on their
protected bases; and if complainant was not considered and if a selection
was made, then the application package and information on the protected
bases of just the selectee(s).
In response, the agency produced the application packages of the
applicants for both Vacancy Announcements DEU-97-21, and DEU-98-14,
including to the extent possible, information on the applicants'
protected bases. Two applicants were selected for the GS-7 position from
VA DEU-98-14. Additionally, it provided an affidavit from a Supervisory
Human Resources Specialist (HR) in which she testified about the method
of selection from the certificates of eligibles.
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, he must first establish a prima
facie case 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.
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. 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. 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. 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 and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo that complainant established his prima facie cases<1>
of discrimination, we turn to the issue of whether the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
Regarding VA DEU-97-21, a certificate of eligibles was compiled after a
personnel specialist reviewed all the applications. Complainant ranked
11th out of 16. Under agency personnel policies, when three higher
ranked candidates on a certificate have been non-selected, then the
certificate is returned without any selection being made (the �Rule
of Three�). The record shows that none of the applicants at the GS-7
level were selected, and that the agency decided to fill the positions
with GS-9 applicants, and from other sources. Regarding VA DEU-98-14,
complainant was considered and ranked on that certificate of eligibles,
ranking 8th out of 24. Two applicants were selected from that VA, both
ranked higher than complainant. We find that the agency has articulated
a legitimate, nondiscriminatory reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
We find that complainant has failed to do so. Complainant has not shown
that the agency failed to select any applicant from VA DEU-97-21 for
discriminatory reasons. He also did not show that his qualifications were
clearly superior to the those of the applicants who were selected under
VA DEU 98-14. A review of the applications does not reveal anything
that would indicate there was discrimination in the rankings of the
applicants for either certificate of eligibles. Complainant discussed in
his affidavit how his suspicions were aroused after he had been contacted
to come in for an interview, and how twice his interviews were canceled,
raising the possibility that the managers conducting the interviews
canceled because of his disability and his need to have a sign language
interpreter present. In the supplemental affidavit provided, HR testified
that it was a common practice at that time to schedule the interviews with
more candidates on a certificate than might be necessary, given the Rule
of Three, at the start of the interview process. Once it was determined
that no one from the certificate was to be selected, then the remaining
interviews would be canceled. HR stated that this was, in all likelihood,
what had occurred in complainant's case. Rather than interview him when
it was known that he could not be selected after three higher ranked
individuals had been rejected, the interviews were simply canceled.
As complainant bears the burden of proof to show that discrimination
occurred, we must conclude that more than speculation is needed to show
that his interviews were canceled for discriminatory reasons and not
for the reasons advanced by HR. Therefore, the agency's determination
that complainant failed to establish that he was discriminated against
was correct.
CONCLUSION
Accordingly, the decision of the agency was proper and 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
_____03-04-03_____________
Date
1 We assumed without finding, for the purposes of analysis, that
complainant is a qualified individual with a disability.