[Redacted], Murray H., 1 Complainant,v.Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity Commission

Jan 11, 2022

Appeal No. 2021000171 (E.E.O.C. Jan. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Murray H.,1 Complainant, v. Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency. Appeal No. 2021000171 Hearing No. 570-2019-01402X Agency No. 18-24-090618 DECISION Complainant 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 August 31, 2020, final decision concerning an 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant was an applicant for employment with the Agency’s facility in Washington, D.C. On September 6, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (Parkinson’s Disease) and age (54 years old at the time of the incident) when, on June 28, 2018, Complainant was not selected for the position of Music Curator with the National Museum of American History, advertised under vacancy announcement no. 18A-SB-303311-MPA-NMA. 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 2021000171 The Agency initially dismissed the complaint on procedural grounds. Complainant appealed to EEOC. In EEOC Appeal No. 2019000719 (Feb. 6, 2019), we reversed the Agency’s dismissal and remanded the matter to the Agency for an investigation. Upon completion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Complainant subsequently requested withdrawal of his hearing request. On August 10, 2020, the AJ remanded the matter to the Agency for a final decision. The Agency issued a final decision finding no discrimination. The Agency found that the review panel for the position at issue was not aware of Complainant’s disability. The Agency stated that while Complainant submitted a cover letter which set forth his medical condition and a statement from a physician regarding his medical condition with his application, these documents were not provided to the review panel. The final decision further found that the Agency articulated a legitimate, nondiscriminatory reason for Complainant’s non-selection. Specifically, the Agency stated that Complainant was not selected for an interview because other applicants were better qualified. The Agency further found that Complainant failed to establish that the Agency’s articulated reason was pretext for discrimination. In addition, the Agency found that Complainant failed to establish that his qualifications were plainly superior to those of the selectee. Finally, the Agency found that after the selectee declined the position, the remaining candidates were not considered to be strong enough by the panel and the vacancy was cancelled. The instant appeal followed. Complainant, though his attorney, requests that we reverse the Agency’s final decision finding no discrimination and asserts that the Agency’s reasons for his non-selection kept changing. Complainant asserts that he submitted various documents with his application package which indicated a statement that he has Parkinson’s Disease. In addition, Complainant asserts that his resume lists his college graduation date, so the Agency would have been aware that he was over 40 years old. Complainant asserts that he applied through the MPA (Merits Promotion Announcement) which was open to Schedule A applicants.2 Complainant asserts that the Agency’s Human Resources Specialist (HR1) stated that the review panel never reviewed the MPA candidates. Complainant asserts that he met or exceeded the qualifications for the position. Complainant asserts HR1 instructed him to apply through the MPA announcement because he had a disability, but then instructed the selection panel not to review the MPA candidates. Complainant states his application was not ranked/scored such as applicants under the DEU listing, and there is no contemporaneous evidence that the applications from the MPA listing were reviewed or considered by the panel. Complainant states that after the selectee declined the position the vacancy was cancelled to avoid giving him the position due to his age and disability. Complainant asserts that the review panel did not want to select someone from the MPA list because the panel may be selecting someone with a disability. ROI at 159. 2 The position at issue was also advertised under a Delegating Examining Unit (DEU) announcement. 3 2021000171 In response, the Agency asserts that its reason for not selecting Complainant has not changed. The Agency reiterates that the review panel only received Complainant’s resume and assessment questionnaire and therefore was not aware that Complainant has Parkinson’s Disease. The Agency asserts that HR1 lacks knowledge of what the panel did with the MPA resumes after they received them. The Agency reiterates that the review panel did review MPA resumes after HR1 issued the MPA certificate. 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. (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”). A claim of disparate treatment 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 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. See 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. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 4 2021000171 The record is insufficient to allow a determination on the merits of the instant formal complaint. Our regulations and EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110)(rev. Aug. 5, 2015), requires agencies to develop a complete and factual record. See 29 C.F.R. § 1614.108(b), EEO MD-110, Chapter 6. The position at issue was advertised under two vacancy announcements: Merit Promotions Announcement (MPA) and a Delegating Examining Unit (DEU) announcement. Complainant only applied under the MPA announcement. Approximately 79 applicants from the DEU listing were forwarded for consideration, while seven candidates were forwarded to the review panel under the MPA listing. Agency’s Responses to Complainant’s Interrogatories at Q.6. The review panel scored the applications and ranked the candidates from the DEU listing. Id. The review panel interviewed the top six candidates from the DEU listing.3 Subsequent to the interviews, the top three candidates were invited back to the Agency to give presentations to the panel. Id. The panel made a selection and the selectee declined the position. Id. Subsequently, the Agency cancelled the vacancies for the position at issue. Id. Complainant asserts that while the Agency states that it considered or reviewed the applicants from the MPA listing, there is no contemporaneous evidence that review panel considered MPA applicants who were comprised of Schedule A applicants (individuals with disabilities) and certain other individuals.4 We find that the record warrants further development. The Agency asserts as its legitimate, nondiscriminatory reason for Complainant’s non-selection that the applications from the MPA listing were considered and reviewed by the review panel and the panel members agreed that the top DEU applicants were better than the MPA applicants. Agency’s Response to Complainant’s Interrogatories (Interr.) Q.6. The record contains documentation reflecting that review panel rated and ranked the applications of the DEU candidates. Agency’s Appendix to Brief in Opposition to Appeal Ex. 14-15. The record contains an affidavit from the Chair of the Review Panel (Chair). The Chair, in his affidavit, asserts that “upon review of the applications, the panel deemed the DEU candidates were the best qualified.” Report of ROI at 187, Question 29. The Chair, in his affidavit, further asserts that he does not know if “Complainant was informed that he was not ranked as high as the candidates that were interviewed.” (emphasis added), ROI at 187 Q. 33. This response seems to imply that the MPA applicants were also scored and ranked similar to DEU candidates. However, the record does not contain documentation indicating that the MPA candidates were scored and ranked similar to the DEU candidates. Furthermore, the record contains an affidavit from HR1. Therein, HR1 asserts that “the MPA applicants were not reviewed at all by the hiring manager.”5 ROI at 195 Q. 33; ROI at 197 Q. 37. 3 The record reflects that no applicants from the MPA listing were interviewed. 4 The record reflects that the MPA was open to current or formal competitive service federal employees, veterans, individuals with disabilities, military spouses, and former Peace Corps, AmeriCorps, and Vista volunteers. ROI at 205. 5 It is unclear from HR1’s affidavit what personal knowledge she would have had regarding whether the review panel considered or reviewed applications from the MPA listing because 5 2021000171 HR1’s statement appears to conflict with the Chair’s statement that the applications for the MPA candidates were reviewed. The record also does not contain affidavits from any other members of the review panel (other than the Chair’s) regarding the review panel’s role in reviewing or considering applications from MPA candidates.6 The Chair asserts that the review panel only received from HR1 the resumes and the responses to the Applicant Assessment Questions with respect to the MPA candidates and thus was not aware that Complainant had Parkinson’s Disease. Agency’s Response to Complainant’s Interr. Q. 16. However, Complainant asserts that he submitted a cover letter and other documentation with his application indicating that he had a disability. ROI 152-153. Moreover, the record reflects that while the record contains an affidavit from HR1, HR1 did not address, in her affidavit, what documentation she provided to the review panel regarding the MPA applicants. Based on the foregoing, we find that the record before us is inadequate. This matter warrants a supplemental investigation for the Chair to clarify his statements with respect to exactly how the applications for the MPA candidates were reviewed or considered by the review panel. In addition, the supplemental investigation shall obtain affidavits from the other members of the review panel to obtain their responses to if and how they reviewed or considered the MPA candidates. Finally, the supplemental investigation should obtain a supplemental affidavit from HR1 regarding what documents she submitted to the review panel regarding the MPA applicants and how she was informed that the panel did not review/consider the applicants from the MPA listing. Accordingly, we VACATE the Agency’s final decision finding no discrimination and REMAND this matter to the Agency for a supplemental investigation in accordance with the ORDER below. ORDER 1. The Agency shall ensure that its investigation completes the ordered supplemental investigation of the complaint within sixty (60) calendar days from the date this appellate decision is issued. As part of the supplemental investigation: (a) The Agency shall ensure that the investigator obtains a supplemental affidavit from the Chair. The supplemental affidavit shall address with specificity exactly how (i.e. through verbal discussion, scoring and ranking of applications etc.) the review panel considered or reviewed applicants from the MPA listing. HR1 asserts that she was not on the review panel and did not assist in the interview process. ROI at 195 Q. 30. 6 The record is devoid of evidence that the investigator even attempted to obtain affidavits from the other members of the review panel. 6 2021000171 (b) The Agency shall ensure that the investigator obtains affidavits from the other individuals that served on the review panel. (ROI at 186-87 Q. 27). These affidavits shall address with specificity whether the review panel considered the applications of the MPA candidates. If the members of the review panel indicate that they reviewed or considered applications from the MPA listing, the affidavits should also address, with specificity, how the MPA candidates were reviewed (i.e. solely through verbal discussion, scoring and ranking system etc). The affidavits from the other members of the review panel shall specify what documentation (if any) they reviewed with respect to the candidates from the MPA listing. (c) The Agency shall ensure that the investigator obtains any documentation (if applicable) that the review panel reviewed or considered the applicants from the MPA listing. (d) The Agency shall ensure that the investigator obtains a supplemental affidavit from HR1. The supplemental affidavit shall address what specific documents Human Resources forwarded to the review panel regarding the applicants from the MPA listing. The supplemental affidavit should also address whether HR1 or human resources personnel communicated to the members of the review panel information regarding Complainant’s medical condition. Finally, HR1’s supplemental affidavit shall address who and how she was informed that the review panel did not review the MPA applicants. (e) The Agency shall ensure that the investigator obtains any other affidavits or documentation not specifically requested in the Order, and consistent with this opinion, which may be relevant in determining the merits of Complainant’s complaint. (2) Once the investigator completes the supplemental investigation, the Agency shall provide Complainant, within thirty (30) calendar days from the date the Agency completes the supplemental investigation, an opportunity to respond to the supplemental investigative report. The Agency shall then issue a new final agency decision, with appeal rights to the Commission, within thirty (30) calendar days of Complainant’s response or, if Complainant fails to respond, within thirty calendar days following the last day Complainant would have been permitted to respond. (3) Copies of the completed supplemental investigation and the new final agency decision must be submitted to the Commission’s Compliance Officer, as referenced below. 7 2021000171 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 8 2021000171 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 9 2021000171 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 January 11, 2022 Date