0120142638
11-22-2016
Raleigh T.,1 Complainant, v. Beth F. Cobert, Acting Director, Office of Personnel Management, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Raleigh T.,1
Complainant,
v.
Beth F. Cobert,
Acting Director,
Office of Personnel Management,
Agency.
Appeal No. 0120142638
Hearing No. 570-2013-00207X
Agency No. 2013-016
DECISION
On July 18, 2014, Complainant filed an appeal from the Agency's June 25, 2014, final order 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. The Commission deems the appeal timely and accepts it 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 the position of Archivist (Processing), GS-1420-09, with the Department of the Interior.
Complainant applied for the position with the Department of the Interior on the last day of the job posting on February 14, 2012. The following day, he submitted an email to the Agency seeking assistance in obtaining the position through Schedule A, uploading documents to the Agency to facilitate his application. He also asked that the Agency provide him with an "accommodation" in the form of a panel to ensure that his application would be processed properly in accordance with regulations and to verify his graduate training and experience which met the minimum qualifications for the position and met the professional standards for an archivist. The HR Specialist responded to Complainant seeking additional information regarding his alleged "request." However, Complainant failed to respond. Complainant was found to be ineligible for the position in question and, as a result, was not selected for the Archivist position.
On January 20, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Attention Deficit/Hyperactivity Disorder) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. on or about February 15, 2012, the Agency failed to process Complainant's application under Schedule A guidelines for the position of Archivist (Processing), GS-1420-09, with the Department of Interior, National Park Service, Job Announcement Number FS-589733-AK-11; and
2. on or about February 15, 2012, the Agency failed to take action on Complainant's request for a reasonable accommodation relative to the processing of his application for the position of Archivist (Processing), GS-1420-09, with the Department of Interior, National Park Service, Job Announcement Number FS-589733-AK-11?
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On May 7, 2014, after both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision by summary judgment in favor of the Agency.
The AJ determined that there were no material facts in dispute. The AJ found that Complainant failed to establish a prima facie case of discrimination. The AJ noted that Complainant did not show that he was qualified for the Archivist position. The AJ indicated that Complainant did not provide his undergraduate transcript to show that he had the experience required for the position in question. Complainant only provided his graduate workload which did not meet the requirements for the position.
Further, as to claim (2), Complainant asserted that he was denied a reasonable accommodation in the form of a panel of experts to ensure his application was properly reviewed. The AJ determined that Complainant failed to make a connection between his disability and the need for the panel noting that it was Complainant who failed to provide a complete application. The AJ also assumed for purposes of analysis that the accommodation was requested, noting that the Agency sought clarification but Complainant failed to reply to the Agency's request. Finally, the AJ turned to Complainant's claim of retaliation. The AJ held that Complainant's claims were related to his failure to provide a complete application and that he did not demonstrate that the Agency's reasons for its actions were pretext for unlawful retaliation.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. On appeal, Complainant sought a hearing on his complaint. He asserted that he had provided sufficient evidence to establish that he was qualified for the position in question. Further, he argued that the Agency has not properly processed his Schedule A applications in the past.
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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While on appeal Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the AJ correctly held that the Agency provided legitimate, nondiscriminatory reasons for its actions in that Complainant failed to submit a complete application. As such, the Agency could not find him eligible for the position in question. Further, Complainant merely asserted that the Agency's action constituted discrimination without evidence to support his claim. Therefore, we find that Complainant has not established that the Agency's actions constituted discrimination based on his presumed disability and/or prior EEO activity,
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). We note that Complainant failed to explain how the panel was a reasonable accommodation for his presumed disability. In addition, the Agency asked Complainant for additional information to clarify his request. It was Complainant who failed to respond to the Agency's request for additional information. As such, we conclude that Complainant has not established that the Agency violated the Rehabilitation Act with respect to claim (2).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action implementing the AJ decision without a hearing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 22, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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