0120142410
08-19-2016
Raleigh T,1 Complainant, v. Beth F. Cobert, Acting Director, Office of Personnel Management, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Raleigh T,1
Complainant,
v.
Beth F. Cobert,
Acting Director,
Office of Personnel Management,
Agency.
Appeal No. 0120142410
Agency No. 2011028
DECISION
Complainant filed an appeal from the Agency's April 30, 2014 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment as an Archivist (Processing) with the Department of Interior, National Park Service and as a Social Scientist at Yosemite Park.
On August 7, 2011, Complainant filed an EEO complaint against the Office of Personnel Management (OPM)'s Human Resources Solutions facility in San Francisco, California. He alleged that the Agency discriminated against him on the bases of disability (Attention Deficit Hyperactivity Disorder (ADHD) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On June 8, 2011, OPM failed to act upon or reply to Complainant's request for a Schedule A2 review of his application for the position of Archivist (Processing), with the Department of Interior;
2. On July 13, 2011, OPM notified Complainant he was not eligible for the Archivist (Processing) position;
3. On July 15, 2011 OPM notified Complainant that he was not eligible for the position of Social Scientist, GS-0101-09/11, with the Department of Interior;
4. On July 22, 2011, OPM failed to reverse Complainant's ineligible status for the position of Social Scientist; and
5. On August 18, 2011, OPM failed to take corrective action for the "unprofessional application review procedures by the OPM San Francisco Services Branch."
The pertinent record reveals the following facts.
On March 16, 2011, the Department of Interior, National Park Service requested that OPM initiate the vacancy announcement for the position of Archivist (Processing), GS-1420-09. OPM posted the position. The position closed on June 7, 2011.
In May of 2011, Complainant filed a complaint (OPM EEO Complaint number 2011017) alleging discrimination and he identified two of the same individuals named in this complaint. The record indicates that the named officials were aware of his earlier complaint.
The record includes medical documentation that indicated that Complainant had "mild interpersonal problems" but "the patient's score does not indicate significant problems in this area." Exhibit H-17, page 184. The record includes a Certificate of Disability from the Pennsylvania Office of Vocational Rehabilitation (OVR), dated June 6, 2011. Exhibit H-17. That certification also stated that "Upon tentative selection, OVR will evaluate the job tasks and determine whether the applicant is able to perform the essential duties of the position."
On June 7, 2011, Complainant submitted an application package via the USA Jobs / Application Manager (Exhibit H-6) (Archivist position).
On July 5, 2011, Complainant applied for a second position (Social Scientist) via the USA Jobs / Application Manager website. He was deemed not qualified because the educational transcripts provided by Complainant did not demonstrate a knowledge of the advanced techniques required for the position. OPM determined that Complainant did not meet the qualification requirements for the position Exhibit I-5.
Claim 1 - OPM failed to act upon Complainant's request for Schedule A review
On June 8, 2011 and on June 19, 2011, Complainant sent an email to the OPM San Francisco Service Branch, containing his Schedule documentation. He requested Schedule A review. He attached copies of his resume and application package for the position of Archivist (Processing), GS-1420-09, announced under Department of Interior, National Park Service, Job Announcement FS-453555-AK11. He submitted the documentation for review by the Schedule A Selective Placement Officer (Exhibit G-4).
The Human Resources Specialist did not respond to Complainant's June 8, 2011 email. No action was taken regarding Complainant's alternative method of submission since it was submitted outside of the method specified on the job announcement. (Exhibit G).
In response to the question as to why Complainant believed that he did not receive a response to his request for Schedule A review because of his disability / medical condition and retaliation, Complainant stated "Lack of professionalism, ongoing failure to appoint a dedicated Schedule A / Selective Placement Coordinator and retaliation for previous EEO complaints. (Exhibit G, page 4).
Claim 2 - OPM's determination of ineligibility, Archivist (Processing) position
OPM was responsible for building the vacancy announcement for the position of Archivist (Processing), GS-1420-09. OPM constructs the announcement based on the Office of Personnel Management qualifications and classification standards and the job analysis and position description provided by the agency. OPM had already set the criteria that all applicants must meet in order to be found eligible for this professional job series. OPM was also responsible for the qualifications review of all applications submitted via US Jobs / Application Manger by the closing date. Following the qualifications review, OPM transmits a list of applicants deemed eligible to the selecting official.
By email on July 13, 2011, OPM notified Complainant that he was ineligible for the Archivist position, because his application did not contain sufficient information about his experience. (Exhibit H-19). The HR Specialist stated that the application did not contain the required documents outlined in the Vacancy Announcement. Specifically, the application did not contain an undergraduate transcript, which was necessary to verify the course work needed to meet the basic qualifications of the 1420 series. Complainant was rated as ineligible because his application did not contain sufficient information about his experience.
Claim 3 - OPM's determination of ineligibility - Social Scientist position
The Department of Interior, National Park Service requested that OPM post a second vacancy announcement. This was for a vacancy in Yosemite, California. As requested OPM posted the vacancy announcement for the position of Social Scientist, GS-0101-11, under Vacancy Announcement FS-479280-KB11. (Exhibit I-2). The position was open from June 14, 2011 to July 5, 2011.
Complainant applied for the position on July 5, 2011, via USA Jobs / Application Manager. On July 15, 2011, OPM notified Complainant that he did not meet the minimum education and / or experience for this specialty and grade (Exhibit I-14). Part of the reason for OPM's determination was that Complainant's resume did not demonstrate actual work experience in social scientist research and the resume did not demonstrate the knowledge of advanced techniques of social science work that were deemed necessary. The rating message advised Complainant "You do not meet the minimum education and / or experience requirements for this specialty and grade." Exhibit I-14 and Exhibit J-3.
Claim 4 - OPM's refusal to reverse eligibility determinations
After Complainant received notification of OPM's determination and his non-referral, Complainant contacted the OPM's Human Resources Solutions Office to request a second tier review of his application. A second level review of his application was conducted by a different staff member. The second level reviewer found that he was not qualified for the position because the staffer determined that he did not meet the minimum qualifies for the GS-09 or the GS-11 position. The second level reviewer did not reverse the initial determination. Complainant was notified on or around July 21, 2011. Complainant acknowledged that he received the results of the second tier review, but he considered them to be inadequate and unprofessional.
Claim 5 - OPM's alleged failure to take corrective action from June to August of 2011
On July 15, 2011, Complainant requested that the Agency take corrective action for what he believed was the "unprofessional application review procedures by the OPM San Francisco Services Branch." In addition, he requested information regarding OPM's implementation of the Schedule A hiring process.
The record includes testimony by the San Francisco Office Manager that she conducted her own review and concurred with the original determinations. The Agency advised Complainant of its findings.
Complainant testified that he did not know of any similarly situated individual who were treated more favorably than he was, under similar circumstances.
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 (AJ). Complainant requested that OPM issue a final decision. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency noted that Complainant identified ADHD as a mental disorder that "impacts his speech cognition, causes jittery motions and gestures." The Agency concluded that "Complainant did not show that he was treated less favorably than others under similar circumstances or that his disability was a motivating factor in the cited issues."
Next, the Agency found that Complainant failed to establish retaliation because Complainant did not submit any information to the record indicating that the OPM officials involved in issues 1 and 2 had knowledge of his prior EEO activity. With regard to claims 3, 4 and 5, the Agency reasoned that it had articulated legitimate nondiscriminatory reasons for their actions, which Complainant failed to show were a pretext for discrimination or retaliation.
This appeal followed.
On appeal, Complainant asserts that OPM failed to adhere to the Schedule A policy which they are responsible to promote and administer. Complainant faults the Agency for not having a dedicated Schedule A coordinator. In addition, Complainant claims that, under Schedule A, applicants such as himself need only meet the minimum requirements to be referred for a position.3 The Agency did not submit a brief on appeal.
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").
Disparate Treatment
Initially, we note, as a threshold issue, that Complainant was neither an employee, nor applicant, for employment with the OPM, against which this matter was filed. In this case, however, Complainant is alleging discrimination and retaliation against him by the OPM for the OPM's role in determining that Complainant was ineligible for the two positions at issue in this appeal. Commission regulations permit a complaint to be filed with the agency that allegedly discriminated against the complainant. See 29 C.F.R. 1614.106(a).
Section 717 of Title VII states that "[a]ll personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination." The Rehabilitation Act Section 501, as amended, applies the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. The ADA says that an employer may not "discriminate against a qualified individual with a disability."
To prevail in a disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
As another threshold matter, complainant must establish that he is a "qualified individual with a disability" within the meaning of the Rehabilitation Act. Complainant offered a document, dated June 6, 2011, from the State of Pennsylvania, certifying that for the federal purposes, he was an individual with a disability.
For purposes of our analysis, we will assume, without finding that Complainant is an individual with a disability. Further, we will presume that Complainant established his prima facie claims. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
In this case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated that it did not respond to Complainant's email request because the email was "outside of the specified method of submission." It determined Complainant to be ineligible because Complainant's application packages did not meet the stated qualifications for the positions at issue. For similar reasons, it did not reverse its determinations or "correct" its processes.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Complainant offers no evidence to show that the Agency's reasons were not its actual reasons or that the true reason was based on discriminatory animus or retaliation. Instead, Complainant asserts that he has been assessed as qualified by other employing entities. He argues that OPM's assessment of him was wrong, because Schedule A applicants do not have to meet the job series standards for eligibility or referral.
We note that the federal job series standards, which OPM applied, are set nationwide. There is no evidence that Complainant was treated adversely or that others were treated more favorably with regard to the two applications at issue.
After our review of the record, we find that Complainant failed to establish that OPM discriminated against Complainant or otherwise violated the laws enforced by the EEOC.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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), 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. The requests 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 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
August 19, 2016
__________________
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 A "Schedule A" appointment is a non-competitive appointment authority for people with disabilities. Eligibility for appointment under Schedule A, 5 C.F.R. � 213.3102(u) requires proof of disability, defined as "proof that he or she is indeed an individual with mental retardation, or severe physical or psychiatric disability." Exhibit G-12
3 We addressed a similar claim by Complainant in Complainant v. Archivist of the United States, National Archives and Records Administration, EEOC Appeal No. 0120123266 (February 6, 2013) (finding no discrimination in non-selection for Archivist position).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142410
2
0120142410