Rosendo D.,1 Complainant,v.Thomas E. Perez, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0120142434 (E.E.O.C. Nov. 23, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rosendo D.,1
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor
(Occupational Safety & Health Administration),
Agency.

Appeal No. 0120142434

Hearing No. 490-2012-00136X

Agency No. 11-04-138

DECISION

Complainant filed an appeal from the Agency’s final order dated June 9, 2014, finding no
discrimination with regard to his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In his complaint, filed September 21, 2011, Complainant alleged discrimination based on age
(over 40) and national origin (Hispanic) when on July 27, 2011, he learned that he was not
selected for a GS-1801-11 Investigator position. Upon completion of the investigation of the
complaint, Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). On April 28, 2014, the AJ issued a decision without

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.
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holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision. Complainant filed his appeal from the Agency’s final order.2

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The record indicates that Complainant, an applicant for
employment at the Agency, applied for a GS-11 Investigator (Whistleblower) position under
vacancy announcement number DE-11-ATL-OSHA-069 on June 18, 2011. As an Investigator,
an incumbent was responsible for conducting investigations of alleged retaliation against
employees under Occupational Safety and Health Act of 1970 and 20 other whistleblower
statutes. The position required qualified applicants to demonstrate evidence of investigative
abilities, investigative experience, and analytical experience. The Agency indicated that the
vacancy announcement opened on June 17, 2011, and closed June 30, 2011, and it directed
applicants to apply online, via the Department of Labor Online Opportunities Recruitment
System (DOORS), uploading a resume, submitting supplemental documents, answering the
vacancy questionnaire, and, if applicable, veteran’s preference documents.

The Agency stated that after the vacancy’s closure on June 30, 2011, its Office of the Assistant
Secretary for Administration and Management reviewed the applications, and based on
candidates’ employment questionnaire responses and a 10-point veteran’s preference, the office

2 We note that on appeal, Complainant raises matters not at issue, i.e., discrimination based on
a disparate impact theory and subsequent selections/promotions at the Agency.
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determined 32 most highly qualified candidates and notified them, including Complainant, that
they were referred to the Selecting Official (SO).

The SO indicated that he alone made the determination as to which applicants to interview
based “upon competencies established for the position including but not limited to including
investigative and negotiation techniques, analytical and interpretive skills, knowledge of
statutes and case law, and communication skills along with applicant credentials submitted in
the applications and resumes.” The AJ stated that after his receipt of the certificate of 32
eligible candidates, including Complainant, the SO printed the electronic certificate details for
all the candidates, including their applications and attached resumes, on July 11, 2011. The
SO indicated that Complainant’s application did not contain his resume and as a result, he
could not evaluate his qualifications, including his experience, education, and other
qualifications. The record reflects that the SO made a handwritten note on a printed copy of
Complainant’s application of July 11, 2011, indicating that he “couldn’t open resume.” The
SO stated that based on his review of candidates’ applications and resumes, he determined the
top 10 qualified candidates for interview. The SO indicated that he interviewed the candidates
by phone on July 18 and 20, 2011, and selected the selectee (32 years old, American) because
her qualifications, based on her resume and interview, made her the best candidate for the
position. Complainant was not one of the top 10 qualified candidates, and thus, was not
interviewed and was not selected for the position. Complainant admitted that the SO did not
know him during the relevant time period at issue.

The AJ stated that DOORS did not show any record of the submission of an uploaded resume
from Complainant as part of his June, 2011 application for the vacancy. Complainant
indicated that on July 21, 2011, he hand delivered an envelope containing a “functional
resume” and writing sample to an Agency employee at the SO’s office. The AJ found that
Complainant never delivered his resume to the SO in July, 2011. Complainant does not
dispute this on appeal. The SO indicated that he never received Complainant’s resume in June
or July, 2011. On appeal, Complainant claims that the SO should have contacted the Agency
Human Resources Office and other resources to obtain his missing resume. There is no
evidence that the SO sought any missing resumes or other application materials as described by
Complainant other than solely relying on uploaded applications/resumes in DOORS as the
vacancy announcement indicated. Complainant does not contest this.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reason for not selecting Complainant for the position.
Furthermore, we find that Complainant failed to show that there were any similarly situated
employees not in his protected groups who were treated differently under similar
circumstances. Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.
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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 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), 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.

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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

November 23, 2016
Date