Jacinto Q.,1 Complainant,v.Janet Dhillon, Chair, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity Commission

Nov 27, 2019

0120162639 (E.E.O.C. Nov. 27, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507

Jacinto Q.,1
Complainant,

v.

Janet Dhillon,
Chair,
Equal Employment Opportunity Commission,
Agency.

Appeal No. 0120162639

Agency No. 2014-0041

DECISION

Complainant timely 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 July 11, 2016, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.2

ISSUES PRESENTED

The issues presented are: (1) whether the Agency processed Complainant’s complaint improperly
and (2) whether the Agency discriminated against Complainant on the basis of disability and in
reprisal for prior protected EEO activity when it did not select him for a GS-0301-12 ADR
Mediator position.

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 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC)
is both (1) the respondent Agency and (2) the adjudicatory authority issuing this decision. For the
purposes of this decision, the term “Commission” is used when referring to the adjudicatory
authority and the term “Agency” is used when referring to EEOC in its role as the respondent
party. In all cases, the Commission its adjudicatory capacity operates independently from those
offices charged with in-house processing and resolution of discrimination complaints.

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BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
at the Agency. On October 10, 2014, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO
activity. In its Notice of Acceptance, the Agency defined the accepted issues as follows:

(1) on August 18, 2014, Complainant was not selected for the GS-0301-12 ADR
Mediator position advertised under Job Announcement No. D14-OFP-1095443-
085-TMD, which advertised vacant positions located in Baltimore, Maryland; New
York, New York; Houston, Texas; and an “unspecified” location, which later was
identified as Seattle, Washington;

(2) Complainant was not selected for the GS-0301-12 ADR Mediator position
advertised under Job Announcement No. D14-OFP-1183231-132-TMD, which
advertised vacant positions located in Miami, Florida, and Philadelphia,
Pennsylvania; and

(3) unknown EEO management and Human Resource officials, including a Human
Resources Specialist (HRS),

(a) conspired to manipulate the recruitment and staffing for ADR Mediator
positions;

(b) conspired to cancel and move the advertised vacancy in the Houston, Texas,
office to the Miami, Florida, office;

(c) conspired to cancel and move the advertised vacancy in the Baltimore,
Maryland, office to the Philadelphia, Pennsylvania, office; and

(d) failed to follow established procedures for the receipt and administration of
applications received from applicants with disabilities.

Further, the Agency noted that Complainant also claimed that the Agency discriminated against
him on the basis of disability and in reprisal for prior protected EEO activity when unknown EEOC
management officials authorized and administered EEO counseling designed to intimidate and
deter him from filing a formal EEO complaint. The Agency stated that it would process the claims
concerning the processing of his complaint pursuant to Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110). Specifically, Complainant alleged
that:

(1) the EEO Counselor failed to identify herself or her role when she initially contacted
Complainant, causing an unnecessary delay in the start of EEO counseling;

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(2) the EEO Counselor initially refused to respond via e-mail to Complainant’s specific
inquiries regarding his initial contact;

(3) the EEO Counselor restricted the amount of time available for EEO counseling by
not promptly responding to Complainant’s e-mails. It was only when Complainant
involved the EEO Counselor’s supervisor, the Deputy Director of the Office of
Equal Opportunity (OEO), that the EEO Counselor understood that Complainant
could submit communications in writing;

(4) the EEO Counselor recorded Complainant’s claims and bases incorrectly;

(5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO
counseling prematurely, and did not ask whether Complainant would agree to an
extension of the EEO counseling to conduct a sufficient limited inquiry;

(6) the EEO Counselor failed to identify the name and title of any involved EEOC
management official or any documents reviewed during EEO counseling;

(7) the EEO Counselor failed to provide Complainant with the specific reasons why he
was not selected by the EEOC responsible management officials or the reasons why
the positions were cancelled and moved to another location; and

(8) the EEO Counselor failed to identify any resolving official or any attempts at
resolution during the counseling;

Complainant subsequently also alleged that that the Agency subjected him to reprisal for the
instant complaint by not framing his allegations accurately in the Notice of Acceptance.

On April 10, 2014, the Agency announced six vacancies for GS-0301-12 ADR Mediator positions
(Job Announcement No. D14-OFP-1095443-085-TMD). The vacancy announcement listed the
following vacancy locations: Kansas City, Kansas; Baltimore, Maryland; Buffalo, New York;
New York, New York; Houston, Texas; and “More Locations (1).” The “More Locations”
reference had a link that, according to HRS, showed the location to be in Seattle, Washington. The
record contains a five-page printout of the announcement; page 5 of the printout lists the sixth
location as Seattle. The announcement period closed on April 18, 2014.

In an April 21, 2014, e-mail to HRS, Complainant stated that he was a 30% or greater disabled
veteran, that he had attempted to apply for the ADR Mediator vacancies prior to the closing date
but had been unable to do so, and that he would like to be considered for the position under the
Schedule A hiring authority.3 Complainant did not explain why he had been unable to apply for

3 The “Schedule A” hiring authority is a non-competitive appointment authority used for hiring
applicants with disabilities. Although federal agencies are authorized to use Schedule A hiring
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the vacancies within the allotted time. HRS replied that Complainant should e-mail the required
documents to her and should identify the locations for which he wanted to apply. Complainant
submitted the documents to HRS on April 21, 2014; identified the Baltimore, New York, and
Houston locations; and reiterated his interest in applying under the Schedule A hiring authority.

On July 11, 2014, HRS sent the Schedule A certificate to the District Resource Manager (DRM)
of the Houston District Office (Houston DO) and notified Complainant that his application had
been referred to Houston for consideration under Schedule A. Complainant responded on July 14,
2014, that he also wanted to be considered for the Baltimore and New York vacancies, and HRS
replied that she would issue notification letters as soon as she finished reviewing the applications.

On July 15, 2014, HRS sent Schedule A certificates to the DRMs of the New York District Office
(NYDO) and Philadelphia District Office (Philadelphia DO)4 and the corresponding notification
letters to Complainant. Complainant asked if the Agency was considering him under all hiring
authorities, including the non-competitive Veterans Employment Opportunities Act (VEOA),
Reinstatement Eligible, and 30% or More Disabled Veteran authorities. HRS notified the DRMs
of the New York, Houston, and Philadelphia District Offices that Complainant wanted to be
considered under the four non-competitive authorities, provided the non-competitive certificates
and Complainant’s application package to the DRMs, and sent notification letters to Complainant.

The Philadelphia DRM sent HRS a July 16, 2014, e-mail stating that the Agency had moved the
Baltimore vacancy to the Philadelphia District Office. She stated in her affidavit that the
Philadelphia District Director asked the Agency’s Assistant Director of the Office of Human
Resources to move the vacancy to Philadelphia. According to the Philadelphia DRM, the
Philadelphia office had a greater need for a mediator because two mediators had retired. The
Philadelphia District Director stated in his affidavit that the Agency’s Assistant Director of the
Office of Human Resources made the decision to cancel the Baltimore vacancy and that
management officials in the Baltimore Field Office had no involvement in the cancellation
decision.

In a July 22, 2014, memorandum to the NYDO Director, the NYDO ADR Coordinator stated that
he, the NYDO Deputy Director, and the Director of the Buffalo Local Office interviewed seven
candidates from the Best Qualified and Merit Promotion certificates for the New York City
vacancy.5 They unanimously recommended a candidate (S1) who was on the Best Qualified

authority when considering applicants with disabilities, the use of this authority is not mandatory.
See generally 5 C.F.R. § 213.3102(u).
4 The Philadelphia DRM served the Baltimore Field Office, which falls under the jurisdiction of
the Philadelphia District Office.
5 The NYDO Director, NYDO Deputy Director, and NYDO ADR Coordinator stated in their
affidavits that the Director of the Buffalo Local Office was a member of the interview panel. The
Director of the Buffalo Local Office stated in his affidavit that he “was not involved in the selection
of the candidate” for the NYDO and that he “was not part of the interviewing panel for the vacancy
in question.”
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certificate. According to the memorandum, S1 “had a good interview,” received “an extremely
strong reference from his former” supervisor, “is a licensed attorney and has an LLM in Dispute
Resolution.” The New York DRM offered the position to S1 on July 25, 2014, and he accepted
the offer.

In his affidavit, the NYDO Director stated that he selected S1 based on the recommendation of the
interview panel. The NYDO Deputy Director stated in her affidavit that the panel interviewed
candidates from the Best Qualified and Merit Promotion certificates because “those lists offered
the largest number of best-qualified applicants.” She also stated that S1 was the best candidate
because he had experience working with the New York District Office’s ADR/Mediation program,
was familiar with the Office’s mediation approaches, and had “focused his professional
development on mediation practice.” The NYDO ADR Coordinator stated in his affidavit that S1
had been an intern in the NYDO, had experience in the Office’s ADR Unit, and “was very focused
on a mediation career.”

In a July 23, 2014, e-mail to the Director of the Office of Field Programs (OFP) and a Supervisory
Program Analyst in OFP, the Houston District Director stated that he had offered the Houston
position to a GS-13 Mediator from the Agency’s Miami District Office (Miami DO) who had
applied for the job in Houston. The District Director asked whether he could accept the GS-13
Mediator as a “reassignment eligible” candidate and have the vacancy transferred to the Miami
District Office. The Supervisory Program Analyst replied that the Mediator could be reassigned
and that she would try to transfer the vacancy. The OFP Director approved of the request on July
24, 2014.

The Houston District Director stated in his affidavit that he appointed the Houston ADR
Supervisor, the Houston Deputy Director, and the Director of the New Orleans Field Office to a
selection panel. He and the panel reviewed the DEU and Merit Promotion certificates and realized
that an EEOC employee (S2) from the Miami District Office was on the certificates. They
reviewed S2’s application package and agreed to select him as the best qualified applicant.
Because S2 would have had to accept a downgrade if he were chosen from one of the certificates,
the Houston District Director contacted the Miami District Director to inquire about reassigning
S2 to the Houston DO. According to the Houston Director, the two district offices, OFP, and the
Office of Human Resources agreed to reassign S2 to the Houston DO and to give the Miami DO
authorization to hire a mediator.

The Miami District Director stated in his affidavit that he had no information about the cancellation
of the Houston vacancy. He also stated that he was aware that the Miami DO received a Mediator
position from the Houston DO in exchange for the transfer of a Miami DO Mediator to the Houston
DO.

On August 5, 2014, the Agency announced two vacancies for GS-0301-12 ADR Mediator
positions in Miami and Philadelphia (Job Announcement No. D14-OFP-1183231-132-TMD). The
vacancy announcement closed on August 13, 2014.

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In an August 6, 2014, cancellation letter that HRS e-mailed to Complainant, HRS stated that the
Agency had cancelled the Baltimore vacancy and relocated it to Philadelphia. She provided the
new vacancy announcement number (Job Announcement No. D14-OFP-1183231-132-TMD) and
stated, “Applicants who previously applied must RE-APPLY.” In response, Complainant asked
why the Agency had cancelled the vacancy. HRS replied on August 11, 2014, that the Philadelphia
District Office made the decision to move the vacancy to Philadelphia. In addition, she informed
Complainant that the Agency reassigned the Miami ADR Mediator to Houston and moved the
Houston vacancy to Miami.

On August 12, 2014, Complainant asked HRS for the contact information of the Agency employee
responsible for receiving discrimination complaints. HRS provided the names and telephone
numbers of two individuals, including an “Equal Employment Specialist, Office of Equal
Opportunity.”

Also on August 12, 2014, Complainant asked HRS about the status of the vacancies in New York,
Kansas City, Buffalo, and the “unstated location.” HRS replied that that Agency had made a
selection for the Seattle position but not for the other positions. Complainant then asked how the
decision to move the vacancies to Philadelphia and Miami affected his application, whether he
automatically would be considered for the two vacancies, whether he would have to reapply for
the vacancies, and whether the Agency had selected, reassigned, or detailed candidates to fill the
vacancies. HRS replied that the Baltimore cancellation letter stated that he would have to reapply
but, because he had applied based on non-competitive authorities, she would automatically
consider his application if he was interested in the Philadelphia location. She likewise told him
that, because he had applied based on non-competitive authorities, she would automatically
consider his application if he was interested in the Miami location. HRS stated that the Agency
had not selected, reassigned, or detailed candidates for the vacancies.

In an August 14, 2014, e-mail to HRS, Complainant asked who made the decisions to cancel the
Baltimore and Houston vacancies, why the Agency made the decisions, and how many ADR
Mediators were assigned to the Baltimore, Philadelphia, Houston, and Miami offices. HRS
informed Complainant that she had forwarded his questions to her supervisor. On August 15,
2014, HRS replied that “[m]anagement made the decision[s]” to cancel and transfer the vacancies
and that Complainant could obtain information about the numbers of ADR Mediators by filing a
Freedom of Information Act (FOIA) request.

Complainant sent HRS an August 18, 2014, e-mail asserting that he had a right to know why the
Agency had not selected him for the vacancies. He noted that the Agency had cancelled two of
the vacancies for which he had applied, that the cancellations occurred after he submitted his
application and was found to be qualified for the position, and that the Agency had not cancelled
any of the vacancies for which he had not applied. Complainant alleged, “It now appears that you
may be part of a concerted effort to impede my ability to obtain employment in advertised vacant
positions that I am extremely qualified for and I should not have to take legal action to obtain
information that should be available upon request.” Also on August 18, 2014, Complainant
contacted the Equal Employment Specialist, and stated that he wanted to file an EEO complaint.
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On August 27, 2014, HRS notified the Philadelphia and Miami District Directors and DRMs that
Complainant wanted to be considered for the vacancies under the four non-competitive authorities.
She provided the non-competitive certificates and Complainant’s application package. HRS sent
the notification letters to Complainant on September 3, 2014.

In a September 4, 2014, response to HRS, Complainant asked whether there were certificates of
eligibility on which he was not listed and, if so, why. HRS replied that the Agency’s automated
system (USAStaffing) had generated Delegated Examining Unit (DEU) and Merit Promotion
certificates and that Complainant’s name was not on those certificates. Complainant responded
that his name should have been on the DEU and Merit Promotion certificates if he was eligible
under those authorities. He stated that he never told HRS that he wanted to be considered only for
a non-competitive appointment. Complainant argued,

If it was necessary to extend the time for me to apply because I needed to submit
my application online via USA Staffing, you should have advised me because there
was plenty of time to add my name and/or reopen the vacancy so that I could apply
and not disrupt the staffing and recruitment process. . . . It appears that there may
be a coordinated effort to conduct recruitment for the position of ADR Mediator in
a manner designed to excluded me from consideration, although I am extremely
qualified to fill the position.

Complainant sent HRS a September 12, 2014, e-mail noting that HRS had not responded to his
September 4 communication and asking if he should assume that his name was not added to the
DEU and Merit Promotion certificates. On September 17, 2014, HRS replied,

Your name was referred to the selection official based on your prior emails. You
asked if you would be automatically referred to the ADR Mediator vacancies in
Philadelphia and Miami. So I referred your name to the selecting official as I
referred it for the prior vacancy.

Complainant responded,

I never requested only to be considered under non-competitive appointing
authorities for the ADR Mediator positions at issue. I requested to be considered
under all applicable appointing authorities/methods. If you were not clear, then you
should have made me aware and explained the process fully. Furthermore, I did
not request consideration in a different manner for the Philadelphia vacancy
(cancelled Baltimore vacancy) because I was not aware that I could request
consideration under different appointing authorities or that the vacancy
announcement would be reannounced and changed to generate additional
certificates of eligibility, DEU and Merit Promotion. None of the other advertised
vacancies for the ADR Mediator were reannounced and/or changed.

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In a September 6, 2014, e-mail to HRS, the Philadelphia DRM stated that the office had chosen an
internal candidate from the Merit Promotion certificate for the position. The Philadelphia District
Director stated in his affidavit that the office did not conduct interviews and that he was the
“Approving Official” for the Philadelphia vacancy.6 He also stated that the selectee (S3) was the
best candidate because S3 was an “excellent worker” who was dependable, could handle a large
inventory, and had a “strong EEO background.” In addition, S3 had experience in mediation,
counseling, negotiations, and settlements.

In his affidavit, the Miami District Director stated that he assigned the Miami Deputy District
Director, the Tampa Field Office Director, the Tampa Field Office Mediator, and the Miami
District Chief Administrative Judge to the interview panel for the Miami vacancy. The panel
interviewed candidates from the DEU and Merit Promotion certificates “because of the vast
number of highly qualified candidates” on the certificates. According to the Miami District
Director, the interview panel ranked the selected candidate (S4) the highest among the candidates.
S4 “demonstrated an in-depth knowledge about the functioning, background and training of an
EEOC mediator;” had worked with Agency mediators through an Agency mentorship program;
and “presented strong background and training as a lawyer, certified mediator, and EEOC
investigator.”

In his Initial Interview Narrative, which he signed on August 28, 2014, Complainant alleged that
the Agency discriminated against him on the basis of disability when it did not select him for any
of the vacancies advertised in the April 10, 2014, vacancy announcement. He asserted that
management and human resources officials manipulated the selection process to exclude him.
Complainant stated, “Although I did not share my specific disability, I made human resources and
management aware that I had a disability when I requested to be considered for an appointment
under [Vacancy Announcement No. D14-OFP-1095443-085-TMD] as a Schedule A (targeted
disability) and as a Disabled Veteran.” Complainant also stated that he “applied competitively and
non-competitively, as a status candidate, Schedule A, reinstatement eligible, VEOA, and Disabled
Veteran.”

Complainant noted that he sent e-mails to HRS regarding the vacancies. He also noted that he
asked HRS who had decided to cancel the vacancies in the Baltimore and Houston offices and to
transfer the vacancies to the Philadelphia and Miami offices. According to Complainant, HRS
refused to identify the decision-maker or to explain the reasons for the actions.

In signed, written responses to the EEO Counselor’s interview questions, Complainant alleged that
the Agency cancelled the vacancies to prevent him from being selected for the positions. He also
alleged that the Agency “concealed the location of the vacancy in the Seattle Office” to prevent
him from applying for the position. Complainant declined to disclose whether he had a physical
or mental disability and asked that his disability be identified as “unspecified.” He argued that,
because he applied for the positions as a Schedule A and disabled-veteran applicant, human
resource and management officials were aware that he had a disability.

6 In her affidavit, HRS identified the Philadelphia District Director as the “Selecting Official.”
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Procedural Background

In an August 18, 2014, e-mail to the Agency Equal Employment Specialist whose name HRS had
provided and who served as the EEO Counselor, Complainant stated that he wanted to file an EEO
complaint regarding a non-selection. The EEO Counselor replied on Tuesday, August 19, and
asked Complainant to let her know when he would be available for a discussion on Wednesday
through Friday. Complainant responded on Friday, August 22, 2014. In his e-mail, Complainant
asserted that he had “applied competitively and non-competitively” for an ADR Mediator position
under Job Announcement No. D14-OFP-1095443-085-TMD. He alleged that the Agency
subjected him to disability-based discrimination when Human Resources and Management
officials allegedly manipulated the selection process by cancelling the Baltimore and Houston
vacancies after learning that he was eligible for a non-competitive appointment. He asked the EEO
Counselor to call or e-mail him if she needed additional information.

On Monday, August 25, 2014, Complainant e-mailed the EEO Counselor, stated that she had not
replied to the voice-mail message that he left her on August 22, asserted that it was taking too long
to complete his initial EEO contact, and asked for the contact information of her supervisor. The
EEO Counselor replied that she had been out of the office and asked if Complainant was available
to discuss his complaint at 2:00 p.m. that day. In his response, Complainant asserted that his
August 24 e-mail provided sufficient information and again asked for the contact information of
the EEO Counselor’s supervisor. The EEO Counselor replied that she needed additional
information from Complainant, that an initial interview was part of the complaint process, that she
had called and left a message for him after receiving his voice-mail message, that he could provide
an alternative time and date to discuss his complaint, and that she would forward his e-mail to the
OEO Deputy Director. She subsequently asked Complainant to provide his home address and to
indicate the law under which he was filing his complaint, whether he had a representative, and
whether he wished to remain anonymous.

In an August 26, 2014, e-mail to the EEO Counselor, Complainant alleged that the EEO
Counselor’s behavior was “very troubling,” that some of the information she requested was not
required during an initial interview, that “the applicable law is not a factor during the informal
process,” and that she was trying to impede his ability to articulate his claim. He further asserted
that, because she had not identified herself as an EEO Counselor, he was not aware that she was
engaging in anything beyond an initial contact. He claimed that, “[a]s an EEO professional with
many years of experience and knowledge regarding the processing of” federal-sector complaints,
he was not aware of any requirement that the initial contact and interview be conducted orally. He
asked her to confirm whether she was acting as an EEO Counselor and to provide contact
information for her first- and second-level supervisors. In addition, Complainant stated that he
would submit a narrative to her and she could let him know if she had any questions about it.

The OEO Deputy Director replied on August 26, 2014, and stated that Complainant’s August 18
e-mail to the “Equal Employment Specialist, who serves as the agency’s EEO Counselor” was
sufficient to begin the counseling process. The OEO Deputy Director also stated that she was the
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EEO Counselor’s first-level supervisor and the OEO Director was the second-level supervisor.
She noted that an individual’s “initial contact begins the counseling process” and that, after the
initial contact, the EEO Counselor sets up a meeting to discuss the individual’s claims. She
explained that the Agency’s process might be different from the process that Complainant had
experienced at his agency and asked Complainant to comply with the EEO Counselor’s request
for a meeting. Complainant responded that he was not legally required to engage in an oral
interview, that he preferred to communicate about his complaint in writing, and that the EEO
Counselor could forward notices to him via e-mail. He asserted that “there is no
miscommunication or misunderstanding on [his] part."

The EEO Counselor sent interview questions to Complainant on August 28, 2014, and
Complainant submitted his answers the next day. Complainant subsequently asked whether the
EEO Counselor had spoken with management and whether management wished to discuss a
resolution to his complaint. The EEO Counselor replied that the Agency cancelled the Houston
vacancy because a Mediator had transferred to the position from Miami, that the Agency selected
a candidate for the New York vacancy, that the Baltimore vacancy was cancelled and moved to
Philadelphia, that the Agency placed someone in the Seattle position through a settlement
agreement, and that HRS stated that she forwarded certificates and application packages for non-
competitive authorities to the locations that Complainant had listed. She subsequently informed
Complainant that the Agency chose an internal candidate for the Philadelphia vacancy.

In a September 15, 2014, letter to Complainant, the EEO Counselor confirmed that she had
conducted an initial interview with Complainant on August 28, 2014. She stated that Complainant
alleged that the Agency subjected him to disability-based discrimination when it did not select him
for any of the ADR Mediator vacancies under Job Announcement No. D14-OFP-1095443-085-
TMD. On September 16, 2014, the EEO Counselor sent Complainant an e-mail stating that the
counseling process had ended. She issued a Notice of Right to File a Formal Complaint (NRTF)
that stated that Complainant had alleged disability-based discrimination when he was “not selected
for the GS-12 ADR Mediator position advertised under Vacancy Announcement ID (D14-OFP-
1095443-085-TMD) for the following offices: Miami, Baltimore, Houston, Philadelphia, and New
York.” In a September 18, 2014, e-mail response, Complainant asserted that the EEO Counselor’s
contact with HRS was the sole extent of the Counselor’s inquiry and that there had been no efforts
to resolve his complaint during the informal process. He asked whether HRS or other management
officials had provided any documents concerning the matter. The EEO Counselor replied on
September 21 that she conducted inquiries with HRS, the Philadelphia and Miami DRMs, and the
NYDO Director; that she learned during the inquiries that the Agency had filled the vacancies; and
that the documents she received included vacancy announcements, Complainant’s application
package, the certificates on which his name appeared, and internal e-mails. She reminded
Complainant that “the counseling process is a limited process and not intended to duplicate an
investigation.” Complainant responded on October 7, 2014, and asserted that the counseling “was
woefully inadequate and biased.” He alleged, among other things, that the EEO Counselor did not
conduct a sufficient inquiry, did not provide him with sufficient information, and did not address
whether Agency officials wanted to resolve his claim.

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In an October 9, 2014, letter to the OEO Director, Complainant asserted that the EEO Counselor
had mischaracterized his claim. He filed a formal EEO complaint on October 10, 2014. In an
October 17, 2014, letter to the OEO Director, Complainant expressed his dissatisfaction with the
processing of his informal complaint. He alleged that the EEO Counselor conducted counseling
in a manner designed to impede his ability to file a formal complaint. Complainant raised several
specific allegations, which the Agency summarized in its January 29, 2015, acceptance letter.

In January 12, 15, and 20, 2015, e-mails to Complainant, an Equal Employment Specialist, who
served as the EEO Investigator, asked Complainant to clarify his allegation that unknown
management officials had intimidated and deterred him from filing a formal complaint.
Complainant sent a January 20, 2015, letter to the OEO Director and identified several Agency
management officials. In addition, he alleged that the EEO Counselor conducted biased
counseling by “(1) not wanting to communicate in writing, (2) waiting until most of the EEO
Counseling period had expired to begin EEO Counseling, and (3) interviewing responsible
management officials after EEO Counseling had closed even though they were available prior to
the close of EEO Counseling.” Asserting that “ADR Mediators likely work very closely with
EEOC EEO employees,” Complainant argued that it posed a conflict of interest to have Agency
EEO employees handle his complaint. He identified his claim as follows:

I was subjected to illegal discrimination on the basis of disability (Schedule A-
targeted) and reprisal for prior EEIO activity when EEOC Human Resources and
Management employees conspired to manipulate the recruitment and selection
process for advertised vacancies as a GS-12 ADR Mediator under vacancy
announcements (D14-OFP-1095443-085-TMD and D14-OFP-1183231-132-
TMD) to prevent my consideration and selection as a top qualified candidate. My
contention is evidence by the following events: . . . .

He then identified specific individuals and five events: the cancellation of the Houston vacancy,
the cancellation of the Baltimore vacancy, his non-selection for the New York vacancy, the alleged
concealment of the location of the Seattle vacancy, and the alleged improper processing of his
complaint.

The Agency accepted Complainant’s complaint for investigation on January 29, 2015. In a
February 7, 2015, e-mail to the OEO Deputy Director, Complainant objected to the acceptance
letter’s use of the phrase “unknown EEOC management officials” and questioned why the Agency
had provided copies of the letter to several management officials. The OEO Deputy Director
replied on February 9 that the phrase “unknown EEOC management officials” came from
Complainant’s formal complaint, that Complainant would have an opportunity during the
investigation to ensure that all officials were identified correctly, and that the Agency notifies the
affected offices when a complaint is accepted to ensure that the offices retain relevant
documentation. In a February 13, 2015, e-mail to the OEO Deputy Director, Complainant argued
that the acceptance letter inappropriately omitted the names of responsible management officials
and relevant information that he had mentioned in his January 20, 2015, letter. He stated that he
wanted to receive copies of all management officials’ statements so that he could provide a rebuttal
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statement. In addition, he repeated the arguments that he made in his January 20, 2015, letter to
the OEO Director.

In a March 3, 2015, email to Complainant, the EEO Investigator attached an “affidavit in question
form” and asked Complainant to complete the affidavit by March 12, 2015. The form reiterated
the accepted issues and asked such questions as when and how Complainant applied for the
positions, what his qualifications were, whether he knew who the selecting officials and selectees
were, why he believed that the Agency subjected him to discrimination based on disability and
reprisal, and whether he wished to provide any other information or documents. In a March 4,
2015, e-mail to the OEO Deputy Director, Complainant noted that OEO Deputy Director had not
replied to his February 13 e-mail. He alleged that it was a conflict of interest for the Agency EEO
Investigator to investigate his complaint. In addition, Complainant argued that the EEO
Investigator had given him “an affidavit that reflects only . . . generic and incorrect claims” rather
than specific claims that identified management officials.

The OEO Deputy Director replied on March 4, 2015. She stated that Agency mediators work in
the field offices and are not assigned to mediate internal EEO claims, that none of the Agency’s
EEO officials had any involvement in Complainant’s substantive claims, and that there was no
conflict of interest. She also stated that the affidavit gave Complainant an opportunity to support
his claim and to identify the responsible management officials, that the EEO Investigator might
identify additional officials during the investigation, that the Agency would provide a summary of
management officials’ statements to him for rebuttal purposes, and that he would receive copies
of all statements after the conclusion of the investigation. Finally, the OEO Deputy Director noted
that Complainant’s concerns about the processing of his complaint would be included in the
complaint file.

Complainant continued to disagree with the Agency’s characterization of his claims and to express
dissatisfaction with the complaint process. In a March 16, 2015, e-mail to the OEO Deputy
Director, Complainant alleged that the OEO Director, OEO Deputy Director, and EEO Investigator
retaliated against him by refusing to record his claims accurately. He asserted that, because he
now had identified them as responsible management officials, their involvement in the processing
of his complaint created a conflict of interest. The OEO Deputy Director replied that the Agency
was investigating his complaint in accordance with the applicable regulations. She stated that
Complainant’s definition of his claim “materially addresses the same claim that was accepted” and
that he could clarify as well as support his claim in his affidavit. She reiterated that the complaint
file would include Complainant’s concerns about the processing of his complaint.
On March 11, 2015, Complainant requested and received an extension of time for submitting his
affidavit until March 16, 2015. He stated that he had been unable to complete the affidavit “due
to illness and other obligations.” On March 18, 2015, the EEO Investigator asked Complainant
about the status of his affidavit. He responded on March 20 that he had been waiting to learn if
the Agency would revise the characterization of his claims, that the EEO Investigator had sufficient
information to begin the investigation, and that he would submit an affidavit and rebuttal statement
after the Investigator gave him an opportunity to review the affidavits provided by management
witnesses. Complainant stated that, if necessary, he would grant the Investigator an extension of
13 0120162639

time within which to complete the investigation. On March 23, the EEO Investigator requested an
extension until May 22, 2015, for completion of the investigation. Complainant responded that he
would grant an extension only if the Agency’s Assistant Legal Counsel for Freedom of Information
Act Programs would provide him “with all of the responsive documents regarding [his] FOIA
request . . .without redacting unnecessary information.” The EEO Investigator replied on March
26 that, because Complainant was not willing to grant an extension, she would issue the Report of
Investigation (ROI) on April 8, 2015, and would give Complainant 15 days after receipt of the
ROI within which to submit a rebuttal. Complainant subsequently informed the EEO Investigator
that he would grant an extension until May 22, 2015. He asked the Investigator if she would
provide him with a copy of her Investigative Plan, witness statements, and the selectees’
application materials. The EEO Investigator replied that she would give Complainant an
opportunity to review management’s responses and to submit a rebuttal and that she would include
additional information in the ROI.

On April 23, 2015, the EEO Investigator provided Complainant with a summary of management’s
and witnesses’ statements and asked him to provide a rebuttal by May 6, 2015. Complainant asked
the Investigator to provide additional information, including e-mails regarding the selections and
vacancies, complete witness statements, application packages, certificates, and interview-panel
notes and scores. The OEO Deputy Director replied that the Investigator was in training, that
investigators did not provide affidavits and other evidence prior to the conclusion of an
investigation, that the Agency provides a summary of management’s responses for rebuttal
purposes, and that Complainant would receive the entire record at the conclusion of the
investigation.

On May 6, 2015, Complainant requested an extension of time for submitting his affidavit until
May 13, 2015, because of “unforeseen personal circumstances.” The EEO Investigator granted
his request and asked to extend the time for completing the investigation until June 5, 2015.
Complainant agreed to the extension. On May 14, 2015, the EEO Investigator asked Complainant
for the status of his affidavit. He responded on May 15 and asked the Investigator to hold the
investigation in abeyance for two weeks because he was “currently experiencing medical issues
that require immediate attention.” The Investigator agreed to extend the date for the affidavit until
May 29 and noted that this would extend the investigation until June 19, 2015. On June 2, 2015,
Complainant informed the Investigator that he had “not fully recovered from the medical issues”
that had prevented him providing his affidavit. He asked for an additional two-week extension.
The EEO Investigator replied that OEO needed to issue the ROI but would allow Complainant to
submit an affidavit up to two weeks after June 19, 2015. Complainant never submitted an affidavit
or a rebuttal statement.

By letter dated June 15, 2015, the Agency provided Complainant with a copy of the ROI and notice
of his right to request a hearing before an EEOC Administrative Judge or a final agency decision.
According to the Agency, Complainant requested a final agency decision.
14 0120162639

Final Agency Decision

In its final decision, the Agency concluded that Complainant did not establish that it discriminated
against him as alleged. The Agency found that Complainant did not establish prima facie cases of
discrimination based on disability or reprisal. The Agency further found that it articulated
legitimate, nondiscriminatory reasons for its actions and that Complainant did not show that the
articulated reasons were a pretext for discrimination.

For example, the Agency noted that the Miami, Philadelphia, and New York officials selected
candidates from competitive certificates because the certificates offered a larger number of
candidates than the non-competitive certificates. It found no evidence that discriminatory or
retaliatory animus motivated the Agency’s decision to use only the competitive certificates.
Similarly, the Agency found no evidence to support Complainant’s assertion that the Agency failed
to consider him for the positions because he notified HRS that he wanted to be considered through
non-competitive authorities. Further, the Agency concluded that the evidence did not support
Complainant’s claims that Agency officials conspired to exclude him from the ADR Mediator
positions by cancelling and moving vacancies or by excluding him from the competitive
certificates.

The Agency found that there was no merit to Complainant’s claim of improper complaint-
processing. In that regard, the Agency stated that the EEO Counselor “took all reasonable
measures to ensure that his complaint was timely filed,” that her failure to identify herself as an
EEO Counselor in her initial e-mail to Complainant did not delay or negatively affect the
counselling, that the OEO Deputy Director’s August 26, 2014, e-mail to Complainant explained
the initial-contact process, and that the EEO Counselor responded promptly to Complainant’s
inquiries. The Agency noted that the EEO Counselor’s “generic statement” of Complainant’s
claim in the Notice of Right to File a Formal Complaint did not include all of the information that
Complainant provided in his August 2014 submissions. It also noted, however, that OEO used all
of the information that Complainant provided when it drafted its Notice of Acceptance. As a result,
the Agency found that OEO cured any harm that Complainant may have suffered. The Agency
further found that the EEO Counselor conducted a sufficient inquiry and that she gave
Complainant the names of several management witnesses. Noting that Complainant received the
names of additional officials after filing a FOIA request and that the EEO Investigator interviewed
all of the responsible management officials whom Complainant identified, the Agency stated that
the inclusion of this information in the investigation cured any harm that Complainant may have
suffered. In addition, the Agency found that there was no merit to Complainant’s claim that the
EEO Counselor did not provide him with the reasons for his non-selection and the cancellation of
vacancies. With respect to Complainant’s claim that the Counselor failed to identify resolving
officials or attempts at resolution, the Agency stated that the selecting officials were the
responsible management officials and “would also have been the resolving officials if they thought
a resolution could be reached.” Finally, the Agency found that the Notice of Acceptance
adequately framed Complainant’s claims.

15 0120162639

The Agency concluded that Complainant did not identify any harm that he suffered as a result of
the Agency’s actions regarding the processing of his complaint and did not show that the Agency’s
actions affected the outcome of the complaint. The Agency “dismissed” Complainant’s improper-
processing complaint for failure to state a claim. In its Conclusion, the Agency also “dismissed”
Complainant’s claim that the Agency discriminated against him on the basis of disability and in
reprisal for prior protected EEO activity.

CONTENTIONS ON APPEAL

Complainant did not file a statement on appeal.7 The Agency argues that its final decision
correctly rejected Complainant’s claims of discrimination and improper complaint-processing.

STANDARD OF REVIEW

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 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”).

ANALYSIS AND FINDINGS

As a preliminary matter, we note that, in its final decision, the Agency stated that it was dismissing
Complainant’s claims of discrimination and improper complaint-processing. The Agency,
however, addressed the merits of Complainant’s allegations. Rather than stating that it was
dismissing Complainant’s claims, the Agency should have stated that it found that it had not
discriminated against Complainant and had not processed his complaint improperly. Given that
the Agency adequately discussed and addressed the merits of Complainant’s claims, its use of the
term “dismiss” was harmless error.

Complaint Processing

When a complainant raises allegations of dissatisfaction regarding the processing of his or her
pending complaint, the Agency official responsible for the quality of complaints processing must
add a record of the complainant’s concerns, and any actions the Agency took to resolve the

7 In a September 9, 2016, e-mail to the Commission’s Office of Federal Operations (OFO),
Complainant noted that the brief in support of his appeal was due on September 15 and requested
a 30-day extension of the time within which to file a brief. He did not give a reason for his request.
OFO granted Complainant a 10-day extension until September 30, 2016. Complainant, however,
did not file a brief in support of his appeal.
16 0120162639

concerns, to the complaint file maintained on the underlying complaint. If no action was taken,
the file must contain an explanation of the Agency’s reason(s) for not taking any action. EEO
MD-110 Chapter 5, IV.A.12 and IV.D. (Aug. 3, 2015).

In this case, Complainant has alleged that the Agency discriminated against him on the basis of
disability and in reprisal for prior protected EEO activity by processing his complaint improperly.
The record does not support Complainant’s allegations.

Although Complainant might have had a clearer understanding of the EEO Counselor’s role if she
had expressly identified herself as a Counselor, her failure to do so did not delay the EEO process.
As the OEO Deputy Director noted in her August 26, 2014, e-mail to Complainant, Complainant’s
August 18, 2014, e-mail to the EEO Counselor began the counseling process. Complainant
engaged in extensive e-mail correspondence with the OEO Deputy Director and the EEO
Counselor. Given the extent of the e-mails and the dates and times that Complainant sent them,
we find that OEO representatives replied to his inquiries in a timely manner. Even though the
OEO representatives asked Complainant to participate in an oral interview, they acceded to his
request for written communications. In addition, we agree with the Agency’s determination that
the Notice of Acceptance cured any harm that Complainant might have suffered as a result of the
NRTF’s “generic statement” of Complainant’s claims. Further, having reviewed the EEO
Counselor’s Report, all of the communications between Complainant and OEO representatives,
and the entire record, we find that the EEO Counselor conducted a sufficient inquiry into
Complainant’s claims and that the EEO counseling met the requirements of 29 C.F.R. § 1614.105
and EEO MD-110 Chapter 2 (“Equal Employment Opportunity Pre-Complaint Processing).
Finally, we find that the Agency accurately articulated Complainant’s allegations in the Notice of
Acceptance.

Having thoroughly and carefully reviewed the record, we find that the record does not establish
that the Agency administered EEO counseling in a manner designed to intimidate or deter
Complainant from filing a formal EEO complaint. We further find that the record does not
establish that the Agency processed Complainant’s complaint improperly.

Non-Selection for ADR Mediator Positions

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). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
17 0120162639

Complainant can do this by showing that the proffered explanations are unworthy of credence or
that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A
showing that the employer’s articulated reasons are not credible permits, but does not compel, a
finding of discrimination. Hicks at 511.

We assume for purposes of analysis only, and without so finding, that Complainant has established
prima facie cases of discrimination based on disability and reprisal. We find that the Agency has
articulated legitimate, nondiscriminatory reasons for its actions and that Complainant has not
shown that the articulated reasons are a pretext for discrimination.

The NYDO Deputy Director stated that the interview panel considered candidates from the Best
Qualified and Merit Promotion certificates because those certificates had the largest number of
best-qualified candidates. She and the NYDO ADR Coordinator stated that S1 had experience
working in the NYDO ADR Unit and was focused on mediation. The Agency moved the
Baltimore vacancy to Philadelphia because two mediators had retired from the Philadelphia
District Office. The Agency chose an internal candidate who was a dependable, “excellent
worker” who had mediation experience for the Philadelphia vacancy. After a mediator from the
Miami District Office applied and was deemed qualified for the Houston position, the Agency
transferred the mediator to Houston and moved the vacancy to Miami. The Miami District Director
stated that the interview panel considered candidates from the Best Qualified and Merit Promotion
certificates because of the large number of qualified candidates on those certificates. He also stated
that S4 had worked with Agency mediators and had a “strong background and training as a lawyer,
certified mediator, and EEOC investigator.”

Complainant, who did not provide an affidavit, has not shown that the articulated reasons are
unworthy of credence. He has not refuted the Agency’s explanation that interview panels
considered candidates from the Best Qualified and Merit Promotion certificates because of the
number of qualified candidates on those certificates. Further, he has presented no evidence that
he was more qualified for the positions than were the selectees. All of the selectees had strong
mediation backgrounds and experience working with the Agency’s mediation program. S2, who
transferred to Houston from Miami, already was an Agency Mediator.

In addition, Complainant has not shown that a discriminatory reason more likely motivated the
Agency’s actions. He offers no evidence to support his allegation that the Agency cancelled the
Baltimore and Houston vacancies to prevent him from being selected for the position. In addition,
there is no merit to Complainant’s claim that the Agency “concealed the location of the vacancy
in the Seattle Office” to prevent him from applying for the position. The vacancy announcement
contained a link that identified the Seattle location. Further, the record establishes that
Complainant was not on the competitive certificates for Vacancy Announcement No. D14-OFP-
1095443-085-TMD because he did not submit an application within the established time frame.
Finally, there is no evidence that the Agency manipulated the recruitment and staffing process to
prevent Complainant’s consideration and selection. Complainant’s unsupported speculation is
insufficient to establish pretext.

18 0120162639

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the Agency did not process Complainant’s complaint
improperly and that Complainant has not established that the Agency discriminated against him
on the basis of disability or in reprisal for prior protected EEO activity when it did not select him
for an ADR Mediator position.

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
19 0120162639

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:

/s/ Bernadette B. Wilson
Bernadette B. Wilson
Executive Officer
Executive Secretariat

November 27, 2019
Date