Emanuel W.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.Download PDFEqual Employment Opportunity CommissionApr 10, 20180120160222 (E.E.O.C. Apr. 10, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emanuel W.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 0120160222 Hearing No. 440-2015-00070X Agency No. FSIS-2014-00594 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated November 5, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2 For the following reasons, we AFFIRM the Agency’s final order 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 8, 2014, Complainant filed his complaint alleging discrimination based on race (African American), color (black), disability (spine and nerve, 30% or more service connected disability), sex (male), and age (over 40), when on June 3, 2014, he 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. 2 Although Complainant filed the instant appeal prematurely on October 13, 2015, since the Agency issued its final order on November 5, 2015, we find the appeal no longer premature. Thus, we will consider the appeal from the Agency’s final order. 0120160222 2 learned that he was not selected for the GS-1084-11/12, Visual Information Specialist (Graphic Designer) position, advertised under vacancy announcement number FSIS-MCE-2014-0035. Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency filed its motion for summary judgment on April 21, 2015. Complainant did not respond to the motion. On October 7, 2015, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. 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 had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged nonselection. At the relevant time, Complainant was employed with the Defense Information Systems Agency as a Multimedia Specialist, GS-12, in Maryland. He applied for the GS-12, Visual Information Specialist (Graphic Designer) position at issue with the Agency. The Agency indicated that the Graphic Designer’s duties involved designing various products such as posters and brochures, using design software to create visual materials, and providing computer-generated presentations. The Agency also indicated that in order to qualify for the GS- 12 level position, for which Complainant applied, applicants were required to show in their resume that they had specialized experience in at least six of the following: (1) Work in a commercial offset printing and/or service bureau environment; (2) Skill in offset printing process; (3) Preparation of files for large format printing output and vector art; (4) Knowledge of International Color Consortium profiles; 0120160222 3 (5) Use of graphic software; (6) Scanning, retouching and resizing of images; (7) Creation of audio files and interactive CD’s; and (8) Formulating table displays for exhibits.3 The Agency indicated that they received almost 200 applicants for the vacancy at issue. A Human Resources Specialist (E1) and a Lead Printing Specialist (E2) reviewed applicants’ resumes and referred qualified applicants for consideration for the position. E1 stated that he determined whether the applicants met the minimum qualifications for the position based on applicants’ resumes. E1 stated that he redacted all information from the resumes, including their name and years of experience, not the experience itself, and sent those redacted resumes to E2. E2 indicated that she received the redacted resumes from E1 and she too determined whether the applicants met the minimum qualifications for the position. E1 and E2 indicated that they were unaware of Complainant’s race, color, sex, age, or disability at the relevant time. The Agency stated that for the GS-12 position, only two of these applicants were eligible as best qualified applicants and they were referred for the consideration. Complainant was not referred for consideration because he only qualified in specialized experience areas (5) and (8), described earlier in this decision. After interviews, the Agency selected a selectee (34 years old, African American, male, no disability) from the GS-11 level certificate for the position. Complainant claimed that he was qualified for the position because he met the six required special experience qualifications, i.e., qualifications (1), (2), (3), (5), (6), and (8). Specifically, Complainant claimed that he met: qualification (1) because he worked at a private printing company for one year from February 1985, to February 1986; qualification (2) because he worked at the private printing company, described earlier, and had been working in Defense Information Systems Agency utilizing “all other production equipment;” qualification (3) because he identified all the equipment in his resume that he was familiar with outputting large formats; qualification (6) because he had been a graphic designer for 38 years and everything designers did was scanning and using fax machines, copiers, and scanners. Complainant maintained that the Agency should have known that he was well qualified for the position based on the foregoing. We note that Complainant, however, does not contest that he failed to clearly indicate in his resume that he met qualifications (1), (2), (3), and (6) by specifying the experiences/skills set forth therein. We find that even if we assume that Agency failed to realize Complainant’s qualifications as he claimed, there is no evidence such was based on discrimination as he alleged. Furthermore, although Complainant claimed that he was qualified for the position because he had 38 years of experience as a graphic designer, we note that a certain number of years of experience was not required to be qualified for the position. It is noted that we do not address in this decision 3 For the GS-11 level, applicants were required to show experience in at least four of the following: design files including print and electronic forms and (1), (2), (3), (5), (6), and (8), which were also listed for the GS-12 level. 0120160222 4 whether Complainant is a qualified individual with a disability. Here, Complainant has not claimed that he was denied a reasonable accommodation. 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 order finding no discrimination is AFFIRMED. 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). 0120160222 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 April 10, 2018 Date Copy with citationCopy as parenthetical citation