[Redacted], Cary R., 1 Complainant,v.Katy Kale, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2021001115 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cary R.,1 Complainant, v. Katy Kale, Acting Administrator, General Services Administration, Agency. Appeal No. 2021001115 Hearing No. 410-2018-00003X Agency No. GSA-13-R4-B-0114 DECISION On November 30, 2020, 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 November 3, 2020, final order 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 Regional Revenue Services Program Expert at the Agency’s Southeast Sunbelt Region in Atlanta, Georgia. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability (paralysis) when Complainant was not selected for the position of Chief Financial Officer (CFO), GS-0501-15, under announcement number 131004FMMP, GS-0501V- 15. The Agency and the Complainant reached a settlement agreement on August 10, 2015. However, the Commission later vacated the agreement for lack of consideration, and remanded the matter 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. 2021001115 2 for further processing of the underlying complaint. See EEOC Appeal No. 0120161965 (July 28, 2017). Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Over Complainant's objections, on September 25, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination was established. The Agency subsequently issued a final order adopting the AJ’s finding. The instant appeal followed. In brief, on appeal, Complainant argues that he was best qualified for the position. He states that the individuals who have held the CFO position, as well as those in charge of selecting the individual who fills that position, have all been negligent in the execution of their duties. Complainant argues that the fact that he filed seven complaints against the Agency, is further evidence that he was subjected to retaliation ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates a dispute of material fact necessitating a hearing. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 2021001115 3 As a threshold matter, we note that on appeal, Complainant states that he was discriminated against on the basis of retaliation. This case has a lengthy procedural history, and throughout that history, Complainant did not raise this basis previously, and it was not part of the accepted claim, investigation, or the AJ’s decision. Complainant was required to make any amendments to his complaint prior to the conclusion of the investigation or to file a motion to the AJ to amend the complaint, pursuant to 29 C.F.R. § 1614.106(d). The record does not reflect, and Complainant does not contend, that he took either of these actions. We therefore will not examine his claim with the additional basis of retaliation. 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 a complainant to prevail, he or she 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. 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, non-discriminatory 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). Here, the AJ determined Complainant did not meet his burden by demonstrating that the Agency’s rationale was pretext or, alternatively, that Complainant was a plainly superior candidate for the position and the Agency’s hiring officials chose not to hire him based on his disability. The evidence of record shows that two panels, a technical review and interview panel, were convened to evaluate the applicants. The technical review panel created a competitive referral list that included Complainant and selectee (disability unknown). Complainant ranked number seven out of nine on the competitive list. The Selecting Officials interviewed the top four applicants from the competitive referral list, and the top three applicants from a non-competitive referral list. Based on the technical review panel’s assessment, Complainant was not selected for an interview. The technical review panel has asserted that Complainant’s disability was not a factor in determining his score. Complainant has not submitted evidence to refute that assertion or to demonstrate that he was a plainly superior candidate who should have been ranked higher on the competitive referral list. Additionally, we find that Complainant has failed to state with specificity facts in dispute either within the record or by producing supporting evidence, and establish that those facts, if in existence, are material under applicable law. Instead, Complainant provides mere assertions and allegations without providing any further evidence to support his claims. 2021001115 4 CONCLUSION The Agency’s final order adopting the AJ’s decision by summary judgment finding no discrimination is AFFIRMED. 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 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. 2021001115 5 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 June 8, 2021 Date