Sam S.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Jun 29, 2018

0120161754 (E.E.O.C. Jun. 29, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sam S.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency. Appeal No. 0120161754 Agency No. 51-2015-00205 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 4, 2016, finding no discrimination regarding 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On July 30, 2015, Complainant filed his complaint, which was later amended, alleging: (1) He was discriminated against based on sex (male), disability, and in reprisal for prior EEO activity when he was not selected for the advertised positions of Administrative Specialist, ZA-0301-II, as advertised under Vacancy Announcement Number OSOAS- 2015-0018. (2) He was discriminated against based on disability and in reprisal for prior EEO activity when he was not selected for the advertised positions of Facility Operations Specialist, 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. 0120161754 2 ZA-1640-II, as advertised under Vacancy Announcement Numbers OSOFEQ-2015-2022 and OSOFEQ-2015-2023. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. Complainant claimed that he had post-traumatic stress disorder, bronchiectasis, Crohn’s disease, seizure disorder, and degenerative disc. The record indicates that Complainant was a former employee of the Agency. He was employed by the Agency as a Hazardous Materials/Waste Facility Assistant from January 2004, to November 2008. He retired from his employment at the Agency in November 2008. Complainant had not been employed by the Agency or any other employer since that date. Regarding claim (1), Complainant applied for the two vacancies for the Administrative Specialist position in June 2015. He made the list of qualified applicants but was not selected for either vacancy. Complainant indicated that he should have been selected for the position since he held the substantially same position when he worked as Lead Secretary in the Agency’s Office of Facilities and Environmental Quality (OFEQ) from 2000 to 2002. Selecting Officials (SO1 and SO2) indicated that they received the Certificate of Eligible Candidates, which included Complainant, for the positions from Human Resources Operations Center. For the positions, they were looking for candidates who demonstrated administrative experience, a high degree of knowledge and experience in parking and transit, and executive correspondence skills. SO1 indicated that because he worked with Selectee 1, female, for the prior 18 months (as a Program Assistant reporting to him), he assessed and observed her to be a very competent employee who had: consistently demonstrated excellent administrative skills; had extensive knowledge of the Agency’s parking program; was very professional and accurate with executive correspondence; and provided professional and timely customer service. SO1 0120161754 3 stated that he interviewed Selectee 1 who performed very well and selected Selectee 1 for one vacancy of the position that would report to him. SO2 indicated that when SO1 and SO2 opened the vacancies, they intended to limit the applicants to current Agency employees because OFEQ did not have the budget or full-time employee headcount available to accommodate new employees. SO2 had no idea how Complainant, a non-Agency employee, made it to the certificate. SO2 indicated that she did not interview anyone as she was not required to do so. SO2 stated that she selected Selectee 2 (female) from the certificate of eligible (who would report to him), because Selectee 2 scored perfectly as a qualified candidate, SO2 worked with Selectee 2 since 2002, and SO2 observed Selectee 2’s job performance to be excellent in the areas of the position duties. Regarding claim (2), Complainant applied for the Facilities Operations Specialist positions at issue on September 1, 2015, but was not selected for the position. Selecting Officer (SO3) for two vacancy positions at issue indicated that she knew Complainant because she was briefly his supervisor eight years ago for six months to a year while he was employed by the Agency. Specifically, SO3 indicated that she received two lists of qualified applicants from Human Resources. One list was the Designated Examining Unit (DEU) list which was a list of qualified external candidates and the second list was the Merit Assignment Plan (MAP) list which was a list of qualified internal candidates. Under the Agency’s guidance, SO3 stated that she could select any person on the MAP list without interview. Thus, indicated SO3, she selected two selectees who she believed were the most qualified applicants because they were presently and substantially performing the positions at a very high level of competence. SO3 indicated that she had personally supervised the selectees for seven to eight years. SO3 stated that Complainant was not selected because he did not have enough experience administering contracts on a day-to- day basis; his prior and brief experience in the Facilities Division eight years ago was not applicable or transferable to the current Facilities Operations Specialist position at issue because the job duties had expanded significantly over the years and had become more complicated and rigorous; and unlike the selectees, he had no experience managing the current contracts. It is noted that we do not address in this decision whether Complainant is a qualified individual with a disability. Here, Complainant has not claimed that he was denied a reasonable accommodation. After a review of the record, we find that Complainant failed to show that his qualifications for the positions were plainly superior to the selectees’ qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 0120161754 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120161754 5 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 29, 2018 Date