0120122915
04-01-2014
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120122915
Hearing No. 570-2010-00392X
Agency No. FSA-2009-00335
DECISION
Complainant filed an appeal from the Agency's final decision, dated June 18, 2012, concerning his equal employment opportunity (EEO) complaint. He alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for a position at the Agency's Farm Service Agency facility in St. Francis, Kansas.
On February 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (46) when, on January 10, 2009, the Agency notified him that he was not considered for the position of Program Technician because his application was incomplete.
The record disclosures the following pertinent information.
Complainant was a 46 year old man at the time of his application. The Agency announced an opening for the position of Program Technician, CO-1101-03/07 under vacancy announcement KSO-80047. Applicants were given the option of applying online or coming into the field office to obtain a package of forms which included the announcement, the application and the Knowledge, Skills and Abilities (KSA) workbook. The announcement identified "supplemental KSA statement" as a key requirement. The position announcement stated, "Candidates who do not submit supplemental KSA statements will not be considered."
Complainant learned of the vacancy through a newspaper advertisement. That advertisement stated that instructions on how to apply and further information were available online. The newspaper article gave a website address. Complainant stated that he was unable to access the website. Complainant acknowledged that he did not call the local office for help with the website issue.
The position was open from December 17, 2008 to January 5, 2009. Complainant hand-delivered his application on December 28, 2008. Complainant did not include a statement that contained the required KSAs.
Twelve people applied.
The County Executive Director (female, age 42) (S1) was the selecting official. Once the application period for the position closed, the selecting official reviewed the applications and made determinations on eligibility. S1 separated the eligible applications from the ineligible applications. She averred that she only considered the applications deemed complete.
S1 sent Complainant a letter, dated January 9, 2009, in which she thanked Complainant for his interest, but notified him that his application could not be considered because "the KSA statements were not submitted with your application" and "this is a requirement." Complainant received the letter on January 10, 2009.
The selecting official averred that she did not know Complainant or his age.
On January 9, 2009, S1 selected another candidate, who is a woman and younger than Complainant. The successful candidate submitted a complete application with KSAs and is asserted to have performed well during the interview process.
Complainant maintains that he was more qualified for the position because he was formerly employed as a Legal Technician from 1998 to 2003. He maintains that his age could be surmised from the application which included the date of his high school graduation. Complainant's application also showed, however, that Complainant had been discharged from a previous position and that the subject position for which he was applying was at a lower grade than one of the positions Complainant previously held. There is no evidence that Complainant's application was reviewed for anything more than eligibility.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on July 15, 2011, the AJ cancelled Complainant's hearing as a sanction on the grounds that Complainant failed to cooperate and/or prosecute his complaint. The AJ noted that Complainant could not be located. Three separate pieces of correspondence sent to the Complainant between June and July 2011 was returned "not deliverable," and his phone number of record was not in service. Therefore, the AJ remanded the complaint to the Agency for issuance of a final decision based on the investigative record.
Agency Decision
The Agency found that Complainant established a prima facie case of sex and age discrimination, but the selecting official articulated a legitimate, nondiscriminatory reason for denying consideration to Complainant's application. The Agency reasoned that Complainant's application had been rejected before the final applicants were interviewed. The application was not considered because it did not include the required KSAs. The Agency concluded that 'the weight of the evidence does not support a finding that the Complainant's sex or age played a role in management's decision to reject the Complainant's application.
This appeal followed.
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, at Chapter 9, � VI.A. (November 9, 1999) (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").
On appeal, Complainant asserts that he was "illegally denied a hearing due to extreme pro-agency bias" of the AJ and that the AJ exceeded her authority. We find, however, that the AJ did not abuse her authority when she cancelled the hearing after multiple attempts to contact Complainant at his address and telephone of record were not successful.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We find that the Agency articulated a legitimate, nondiscriminatory reason for not considering Complainant's application. In this case, the selecting official (S1) averred that Complainant's application was ineligible because his application did not include the required KSAs.
We further find that Complainant did not provide evidence to show that the Agency's reasons were a pretext for discrimination. The individual who was selected had included her KSAs in her application package. S1 averred that she did not know Complainant and that his application was not considered. There is no evidence that he was rejected for reasons of his sex or age, or that consideration was given to anyone else who failed to include the KSAs. Complainant maintains that he applied utilizing the information in the newspaper advertisement and that he submitted all of the required application materials as stated in the newspaper advertisement. He argues that the Agency "intentionally listed an invalid website address" because the selectee was "pre-chosen." However, beyond this bare assertion, Complainant has provided no evidence to support his claim of discrimination.
We find that the preponderance of the evidence supports the Agency's decision.
As a final matter, on appeal Complainant as indicated that he has filed an additional EEO complaint (Agency number EOI-2013-00079) alleging unlawful retaliation when Agency counsel filed state criminal charges against Complainant. Complainant asked that, when his sex and age complaint were remanded for a hearing, his retaliation complaint be consolidated with it for continued processing. As we have affirmed the Agency's decision finding no discrimination in the complaint concerning the selection decision, we decline to consolidate it with this additional retaliation claim. Once Complainant receives a final decision on the retaliation complaint, he may file another appeal if he wishes.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 1, 2014
__________________
Date
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0120122915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122915