U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tristan W.,1 Complainant, v. David Bernhardt, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2019005362 Hearing No. 520-2017-00460X Agency No. DOI-NPS-16-0415 DECISION On July 15, 2019, 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 June 19, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for a position at the Agency’s Sagamore Hill National Historic Site facility in Oyster Bay, New York. On August 19, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when, on May 6, 2016, Complainant was notified that he was not selected for a Seasonal Laborer position, vacancy number NSHRO-HH-1616635-16-75, with the Agency. 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. 20190053622 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Complainant applied for the seasonal position at issue and was not selected. He argued that the Agency’s hiring process puts him at a disadvantage because he has a medical condition, epilepsy, that renders him ineligible for military service and he, therefore, has never been able to earn veterans’ preference. He obtained his Schedule A certification to be more competitive, but he believed it raised concerns with hiring officials that he would not be able to perform the duties of the position. The Supervisory Facilities Operations Specialist (Supervisor) attested that Human Resources (HR) personnel recruited for the position at issue and he was the selecting official. An HR Specialist gave him a veterans list that contained one name and he offered that candidate the job, but he declined. He returned the list to the HR Specialist and she then sent him a list of eleven names, “the best qualified list,” including Complainant. Supervisor attested that he focused on people in the local commuting area because the candidates were considered equally qualified, they were not ranked by score, the job was limited to six months, it is very hard to find housing locally, and, in his experience, candidates decline his job offers when they learn of local housing costs. He offered the position to three local candidates and they all declined. He attested that, as of August 2016, he decided not to fill the position because of the limited time remaining in the season. Supervisor attested that he did not make an offer to Complainant because he had not exhausted the people that he had chosen from the best qualified list who lived locally. Complainant’s home address was in Maryland and the position was in New York. Supervisor attested that he was unaware that Complainant could have been hired under Schedule A. An email string shows that Complainant’s Schedule A Certification Letter was sent to the Agency’s Administrative Officer (AO) in February 2014. The HR specialist explained that the hiring official is free to select any person on the best qualified list, as they are considered equally qualified. She further explained that, while managers make a strong effort to interview applicants who are veterans, there is no legal requirement to prefer Schedule A applications. She attested that Complainant applied as a Schedule A applicant and his certification was in his application papers. The Director of Talent Management (Director) attested that he received an email from Complainant asking general questions about how to get a job and he advised Complainant to use USAJobs to apply for jobs and to request that specialists forward his applications to hiring officials as a noncompetitive eligible. Director attested that there is no requirement to hire a Schedule A applicant. 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 requested a hearing, but the 20190053623 AJ denied the hearing request on the grounds that Complainant had shown indifference to the EEO process and the AJ’s Orders and had failed to prosecute the complaint. The AJ remanded the complaint to the Agency, and 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. The instant appeal followed. On appeal, Complainant makes a general assertion that the EEO process is biased. In response, the Agency asserts that, although federal agencies are authorized to use the Schedule A hiring authority, the Commission has held that the use of the authority is not mandatory. The Agency asserts that the Agency failed to communicate Complainant’s Schedule A status to the selecting official, but there is no evidence to establish this was done intentionally or was motivated by discriminatory animus. The Agency also asserts that it articulated a legitimate, non-discriminatory reason for not selecting Complainant for the position in that it was not conspicuously evident that Complainant resided in the local commuting area. It also asserts that the record does not establish its reason was pretext for discrimination. 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”). Complainant has alleged that the Agency treated him disparately when he was not selected for the Seasonal Laborer position for which he applied. 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 a 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 Constr. 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 Tex. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, his claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that they initially sought to fill the vacancy with a veteran and the veteran applicant who was offered the position declined to accept it. After that, a best qualified 20190053624 list was prepared that included Complainant and, from those equally qualified candidates, the Agency offered the position to three candidates who lived locally because, in the selecting official’s experience, non-local candidates would usually decline, in light of the housing costs in the area. Complainant, although equally qualified, had indicated he lived in Maryland, which was not local to the position’s location. After these three local candidates had declined, the Agency decided not to hire anyone in light of the limited time remaining in the season. The Agency generally has discretion to choose among equally qualified candidates. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 259. With respect to Schedule A, we have previously found that although federal agencies are authorized to use Schedule A hiring authority when considering individuals with disabilities, “the use of this authority is not mandatory.” Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120131609 (December 16, 2014); Hein v. National Archives and Records Administration, EEOC Appeal No. 0120123266 (Feb. 6, 2013), request to reconsider denied in EEOC Request No. 0520130314 (August 5, 2013); see generally, 5 C.F.R. § 213.3102(u). In EEOC Appeal No. 0120131609, we also noted that Executive Order 13548 provides that agencies shall generally increase utilization of Schedule A hiring authority but does not mandate the use of Schedule A authority in any hiring decision. Executive Order 13548, Increasing Federal Employment of Individuals with Disabilities, Federal Register Vol. 75, No. 146 (July 30, 2010). Although Complainant has alleged discrimination on the basis of disability, we find that he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to his claim. 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 decision. 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 20190053625 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 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. 20190053626 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 31, 2020 Date
