[Redacted], Newton P., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Aug 4, 2022

Appeal No. 2021001712 (E.E.O.C. Aug. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Newton P.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021001712 Agency No. DOS-0463-19 DECISION On January 15, 2021, 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 December 17, 2020, final decision (FAD) 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment for various position at the Agency. On September 2, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Carcinoid Cancer) and age (71) when: 1. On July 16, 2019, Complainant’s certification letter for Schedule A eligibility was delayed, affecting his opportunity to apply for positions with the Agency; and 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. 2021001712 2 2. From July 16, 2019 to August 27, 2019, Complainant was not selected for ten different positions. 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, with regard to claim 1, the Agency’s Selective Placement Program Coordinator (“SPPC”) (64-65 years of age) denied any delay in processing Complainant’s certification for Schedule A eligibility. With regard to his nonselections, the Agency found that none of Complainant’s applications made the “highest qualified” list and hence he was not provided an interview. The Agency further found that Complainant failed to establish that the Agency’s articulated reasons for its actions were pretextual. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (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”). Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 2021001712 3 This established order of analysis 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, 713-14 (1983). Here, the Agency articulated legitimate nondiscriminatory reasons for its findings. With regard to the alleged delay in issuing a certification letter for Schedule A eligibility, SPPC denied any delay, averring “I received his request to join the DOS Talent Database on July 15, and added him to our Database on 7/19.” Complainant did not rebut SPCC’s contention that it took her just four days to process his request and we note that Complainant has not specified how long the process should have taken and why he viewed a four-day delay to be so unreasonable as to suggest discriminatory intent. Complainant averred that the delay cost him opportunities to apply to various positions, but we note he has not identified any specific ones that he was prevented from applying for due to the four-day delay. With regard to the various nonselections, a review of the record shows that one of the announcements was cancelled and three other announcements did not result in any selection being made. The record further shows that applicants were assigned scores via a computerized program based on their answers to self-assessment questions and, based on the total score received, categorized as “Not Qualified”, “Qualified”, “Well Qualified”, or “Highly Qualified”. Complainant’s self-assessments resulted in him receiving scores of either “Qualified” or “Well Qualified” but only candidates with a self-assessment score of “Highly Qualified” were forwarded for further consideration. Specifically, with regard to Vacancy HRSC/OBO-2019- 0069 (General Engineer, GS-14), the Human Resources Specialist (HRS1: age not provided, no claimed disability) who processed that vacancy averred that she did not know Complainant but that he received a self-assessment score of “Well Qualified” and he was given no further consideration. With regard to Vacancy HRSC/OBO 2019-0071 (Program Specialist, GS-14) the record shows that the vacancy was cancelled with no selection made. With regard to Vacancy HRSC/OBO 2019-0073 (Program Specialist, GS-14), the Human Resources Specialist (“HRS2”) (39 years old) who processed that vacancy averred that she did not know Complainant but that he received a self-assessment score of “Qualified” and hence was given no further consideration. With regard to Vacancy ECA-2019-0062 (Program Support Specialist, GS-09), the Human Resources Specialist (“HRS3”) (27 years old) who processed that vacancy averred that she did not know Complainant but that he received a self-assessment score of “Well Qualified” and hence he was given no further consideration. With regard to Vacancy ECA-2019-0070 (Program Analyst, GS-13) the Human Resources Specialist (“HRS4”) (64 years old) who processed that vacancy averred that he did not know Complainant but that Complainant did not meet the specialized experience requirement and was deemed not qualified. 2021001712 4 With regard to Vacancy HRSC/DRL 2019-0013 (Program Analyst, GS-13), the Human Resources Specialist (“HRS5”) (50 years old) who processed that vacancy averred that she did not know Complainant but that he received a self-assessment score of “Well Qualified” and hence he was given no further consideration. With regard to Vacancy 2019-0334/DS (Program Specialist, GS-13) the Human Resources Specialist (“HRS6”) (41 years old) who processed that vacancy averred that Complainant received a self-assessment score of “Well Qualified” and hence he was given no further consideration, and further, that no selection was made for this vacancy and it was never filled. With regard to Vacancy HRSC/HR-EX 2019-0032 (Program Analyst, GS-9) the Human Resources Specialist (“HRS7”) (38 years old) who processed that vacancy averred that Complainant received a self-assessment score of “Well Qualified” and he was given no further consideration. With regard to Vacancy HRSC/NEA 2019-0012 (Management Analyst, GS-12) the Human Resources Specialist (“HRS8”) (34 years old) who processed that vacancy averred that she did not know Complainant but that he received a self- assessment score of “Well Qualified” and was given no further consideration. HRS8 further averred that no selection was made for this announcement. Finally, with regard to Vacancy HRSC/INL 2019-0027 (Program Analyst, GS-13), HRS8 also processed this application. She averred that Complainant’s self-assessment rating was “Well Qualified” and he did not reach the “Highly Qualified” level for further consideration. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. In his rebuttal statement, Complainant opines that the Agency automated system that evaluated candidates’ self-assessments “is probably not doing a great job. Sometimes computer systems do not actually do what you think they are doing.” Such an argument does not help establish that the Agency’s articulated reasons for its actions are pretextual or that the Agency harbored discriminatory animus towards Complainant’s protected bases, or indeed that Complainant was treated differently. Complainant provided no other testimony addressing the Agency’s articulated reasons for its actions. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination occurred, and we AFFIRM the FAD. 2021001712 5 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). 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). 2021001712 6 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 August 4, 2022 Date