[Redacted], Tim H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Jul 20, 2021

Appeal No. 2021003194 (E.E.O.C. Jul. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tim H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 2021003194 Agency No. 2003-0010-2021100541 DECISION On June 2, 2021, 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 May 6, 2021 final decision 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 was an applicant for Agency employment. Complainant’s application was processed at the Agency’s Human Resources Management and Consulting Services (HRMACS), Human Resources Operations Office (HROO), in Austin, Texas. On October 20, 2020, Complainant was informed via email that he was not considered for the position to which he applied because he did not meet the area of consideration requirements as specified in the announcement. On December 7, 2020, Complainant filed a formal EEO complaint alleging the Agency discriminated against him on based on disability (chronic back pain, diagnosed as Degenerative 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. 2021003194 2 Disc Disease) when he was found ineligible for the IT (Information Technology) Project Manager position, vacancy announcement number CARX-20-10919359-LRc. After an 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). The record contains no documentation on the matter of whether Complainant either requested a hearing within the time frame provided in 29 C.F.R. § 1614.108(f) or if he requested a final agency decision (FAD). However, there is nothing in the record or alleged by Complainant to suggest he requested a hearing. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was proven by Complainant.2 The instant appeal followed. On appeal, Complainant states that the Vacancy listed the area of consideration to be Career transition, individuals with disabilities, internal to Agency, and Veterans. Complainant states that he is both an individual with a disability and a Veteran. Complainant avers that he was found ineligible and he was notified, after seeking clarification, that the area of consideration for Veterans was 30% Disabled Veterans. Complainant states that the FAD references the use of the Disabled Veterans Hiring Authority (DVHA), but that the Vacancy advertised as open to Veterans and not using the DVHA. Complainant argues that the Veterans’ preference is what was listed on the Vacancy, and therefore the Veterans’ preference is what should have been considered in determining Complainant’s eligibility for the Vacancy. 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 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). 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. 2 We do note that both Complainant on appeal and the Agency in its opposition to the appeal refer to the “AJ’s decision.” The final decision was issued by the Agency’s Office of Employment Discrimination Complainant Adjudication Acting Director. As already determined, the record does not reflect that a hearing was requested or that this matter was before an EEOC Administrative Judge. 2021003194 3 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. See 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). We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. However, the responsible Agency officials articulated a legitimate, nondiscriminatory reason for deeming Complainant ineligible for the Vacancy. Agency witnesses stated that applicants to the Vacancy were eligible as Disabled Veterans, under the Disabled Veterans Hiring Authority (DVHA) with a disability rating of 30% and more, among other categories. The Agency stated that the other eligibility certifications were Agency employees and career transition. The record shows that the Vacancy announcement listed career transition, individuals with disabilities, internal to agency, and Veterans. After receiving notification that he was deemed ineligible for the Vacancy, Complainant contacted the Agency’s Human Resources Consultant (HRC). The HRC responded in an email and informed Complainant that the Vacancy’s area of consideration for Veterans was 30% Disabled Veterans, and that “[u]pon review of the posting this was not made clear in the announcement.” The HRC also apologized and stated that “the way the vacancy was posted there is no legal authority under which [the agency] can hire [Complainant].” Complainant continued to exchange emails, and the HRC stated that Complainant responded “yes” in the eligibility section when asked if he was a facility employee or a 30% or more Disabled Veteran, but that the submitted documentation did not support either assertion. Complainant argued that he should have been eligible because the announcement did not clearly state the DVHA, but instead said Veterans and individuals with disabilities, both of which he demonstrated he is. On appeal, Complainant argues his Veteran’s preference should have been used, making him eligible for the Vacancy, and that the use of the DVHA was incorrect. However, Complainant bears the burden to demonstrate that the Agency’s articulated legitimate, nondiscriminatory rationale is pretext for discrimination against him, based on his physical disability. We acknowledge that both the record and the Agency indicate that the Vacancy announcement was not clear. This lack of precise clarity, however, does not equate to unlawful discrimination against Complainant due to his statutorily protected basis. Complainant has not met his burden to demonstrate by a preponderance of the evidence that the Agency’s articulated rationale is pretext for discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination. 2021003194 4 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. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2021003194 5 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 July 20, 2021 Date