[Redacted], Adalberto S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Mar 24, 2021

Appeal No. 2020001006 (E.E.O.C. Mar. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adalberto S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020001006 Hearing No. 470201800048X Agency No. BOP20170035 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 1, 2019, Final Order concerning an equal employment opportunity (“EEO”) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Supervisory Correctional Officer (Lieutenant), GS-11, at the Federal Medical Center in Lexington, Kentucky. On January 6, 2017, Complainant filed a Formal EEO Complaint alleging discrimination by the Agency on the basis of disability (Granulomatosis with Polyangiitis, also known as GPA or Wegener’s, with Stage 3 Kidney Disease and Peripheral Neuropathy), when, on September 30, 2016, he was not promoted to the following positions, which he applied for under the Federal Government’s Schedule A Hiring Authority: 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. 2020001006 2 1. Correctional Programs Specialist (Special Investigative Agent) Vacancy No. NCR20160177, 2. Correctional Programs Officer (Unit Manager), Vacancy No. MXR-2016-0142 (two vacancies), and, 3. Correctional Programs Specialist (Residential Reentry Specialist), Vacancy No. CO20160462. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Over Complainant’s objection, the AJ issued a decision by summary judgment in favor of the Agency on August 21, 2019. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. On appeal, Complainant argues that a question of fact exists, warranting a hearing, on whether the selecting officials applied Schedule A protocols when considering his applications. However, this is not material to Complainant’s case because failure to consider an applicant under Schedule A does not create an inference of discrimination. See Meghann M. v. Dep’t of Veterans 2020001006 3 Affairs, EEOC Appeal No. 0120182636 (Oct. 23, 2019) citing Hein v. Nat'l Archives & Records Admin., EEOC Appeal No. 0120123266 (Feb. 6, 2013). As with the legal authorities cited by Complainant, it is the Commission’s position that, while authorized to do so, it is not mandatory for Agencies to apply Schedule A when reviewing applicants for a vacancy. Id. citing Van Wersch v. Dep't of Health & Human Svcs., 197 F.3d 1144, 1146 (Fed.Cir.1999) (Schedule A provides the agency a means to avoid competitive placement but does not impose an obligation to use this authority in any specific case), and MacDonald v. Cohen, 233 F.3d 648 (1st Cir 2000) (under Schedule A regulations, disabled persons who qualify are not required to be given preference). Alternately, given that the Agency provided legitimate, nondiscriminatory reasons for its actions, Complainant’s bare assertions about reliance on a manager’s recommendation rather than an interview, or that his schedule A status may have caused the selecting officials to view his applications differently than the applications of the other candidates, are not sufficient on their own to establish a question of fact over whether the Agency was motivated by discriminatory animus. Upon careful review of the AJ’s decision and the record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2020001006 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020001006 5 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 March 24, 2021 Date