Alton F.,1 Complainant,v.Dan Brouillette, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Aug 19, 2020

2019000655 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alton F.,1 Complainant, v. Dan Brouillette, Secretary, Department of Energy, Agency. Appeal No. 2019000655 Agency No. 180010AL DECISION On December 15, 2018, 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 6, 2018, 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. ISSUES PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not discriminated against in a non-referral for consideration resulting in his non-selection to a position for which he applied. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for the position of Office Assistant/Technician at the Agency’s National Nuclear Security Administration (NNSA) in Oak Ridge, Tennessee. 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. 2019000655 2 On November 27, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (mental) when on October 25, 2017, he learned that he was not given the opportunity to be selected for the position advertised under Job announcement #17-0149-GOV because he was not referred for consideration. The NNSA advertised the position at issue; and the job was open to applicants eligible under Schedule A hiring authority. Complainant applied for the position; and he declared eligibility for consideration under Schedule A, which allows federal agencies to non-competitively hire individuals with severe physical disabilities, psychiatric disabilities, and/or intellectual disabilities. Complainant alleged that the Human Resources Consultant (HRC) failed to forward his application to the Selecting Official (SO). Complainant explained that he was diagnosed with Obsessive Compulsive Disorder (OCD) in 1995. Complainant explained that OCD is a life-long medical condition that adversely impacts his ability to think as clearly and as quickly as he would if he did not have the condition. Complainant stated that he called HRC soon after submitting his application in order to advise her that he would like to be considered for the position at issue under a Schedule A appointment. He alleged that HRC did not refer his application to the SO for consideration even though she knew that Complainant was a Schedule A applicant. Complainant asserted that HRC’s actions ran counter to applicable EEO regulations regarding federal agencies taking steps to promote the recruitment and hiring of qualified individuals with disabilities. HRC affirmed Complainant’s statements about his application. She also acknowledged that Complainant submitted documentation of eligibility for employment under Schedule A. HRC explained that when a job announcement is open, she may receive several calls a day. As a result, she stated, she could neither confirm nor deny whether Complainant called her or whether she spoke with Complainant about his request for consideration under Schedule A. HRC noted that when she initially ran the applicant listing report, it did not indicate that there was a special appointing authority for Complainant’s application. HRC explained that she looked at the scores of other applicants to determine who to move forward in the process. HRC indicated that she did not look at any applicants that scored below 84.48, and Complainant had received a score of 72.59. HRC acknowledged that this was a mistake on her part for not looking at Complainant’s application to see that he would have made the minimum qualifications to be moved forward. HRC asserted that once it was brought to her attention that Complainant was eligible for consideration under Schedule A hiring authority, she took immediate action and certified him as being qualified. HRC noted that by that time, the Certificate of Eligibles had been issued and selections had been made. HRC affirmed that the original individual selected for the position did not accept the position, and neither did the alternate candidate selected for the position. 2019000655 3 HRC stated that it was after that time that she forwarded Complainant's application to the SO for consideration. She noted that although the vacancy was no longer open, the position had remained unfilled, so there was still an opportunity for Complainant to be considered. SO acknowledged that he had received a Schedule A certificate with three individuals identified on the list for the vacancy announcement but Complainant was not on that original Schedule A list. SO noted that Complainant's application (with a Schedule A certificate) was later provided to him but he is not aware of Complainant's specific disability. SO noted that because he had received Complainant's application after he had already made selections for the position, he did not consider Complainant for VAN 17-0149-GOV. SO stated that Complainant's application was considered for a similar position which was advertised under VAN 17-0212-GOV. SO explained that Complainant however scored the lowest of the eligible candidates due to his lack of experience for the second position. SO noted that as a result of Complainant's low score, Complainant was not selected for the position under VAN 17- 0212-GOV. 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). 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. CONTENTIONS ON APPEAL In his Appeal Brief, among other things, Complainant contends that his complaint is that HRC denied him the opportunity to be selected, not that he was not selected for the position to which he applied. Complainant requests that the Agency issue a FAD on the basis of his claim instead of the basis of non-selection. Complainant contends the Agency’s statement that the original selectee for the position to which he applied was a Veteran with a 30 percent disability, arguing that a Veteran with a 30% disability is not in his protected group. Complainant contends FAD statements that he did not provide any evidence, arguing that he had repeatedly, throughout the complaint process, asked the Agency for access to phone records to prove that he had indeed called HRC as stated. Complainant asserts that the Agency has repeatedly denied him access to the evidence. Complainant also contends that he did call HRC to let her know of his interest in being considered for the position advertised under VAN 17-0149-GOV under schedule A hiring authority. Complainant indicates that HRC did not make the mistake of not realizing that Complainant was a Schedule A applicant as she stated. 2019000655 4 He again asserts that the Agency’s failure to allow him access to phone records is the reason he was unable to provide circumstantial evidence to prove that HRC was indeed aware that he was a Schedule A applicant. Complainant also asks that the Agency determine if any of the other referred Schedule A applicants scored below 84.48. Finally, Complainant contends that HRC’s action was based on discrimination because she repeated her mistake when she failed to forward his application for the similar position for consideration until he had spoken with HRC’s coworker. He asserts that HRC’s actions was intentional, asserting that she denied him the opportunity of being considered for the position to which he applied. 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 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”). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He 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 Constr. 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, 441 U.S. 802 at n. 13. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). The Commission applies the McDonnell Douglas analysis to complaints involving disability discrimination claims. See Thompson v. US. Postal Serv., EEOC Appeal No. 01965396 (Aug. 11, 1998). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability; we find that the Agency articulated legitimate, nondiscriminatory reasons for his non- referral for consideration for the position to which Complainant applied. 2019000655 5 HRC acknowledged that it was a mistake on her part when she failed to look at Complainant’s application to see that he would have made the minimum qualifications to be moved forward for consideration under Schedule A hiring authority for the original position advertised under VAN 17-0212-GOV. She also explained that when she ran the applicant listing report, it did not indicate that there was a special appointing authority for Complainant's application. Since there was no indication that Complainant was eligible for consideration under Schedule A hiring authority, HRC noted that she did not look at his application because he had been scored at 72.59, and the cut-off for moving applications forward had been set at 84.48, well above Complainant’s score. In an effort to show pretext, Complainant contested HRC’s explanations, asserting that HRC’s mistake was repeated a second time; and that she had only forwarded his application for the similar position advertised under VAN 17-0212-GOV after he spoke with HRC’s coworker. However, HRC asserted that once it was brought to her attention that Complainant was eligible for consideration under Schedule A, she took immediate action and certified him as being qualified. Notably, Complainant argued that the Agency failed to provide him access to phone records that would show that he had spoken with HRC to inform her that he would like to be considered under Schedule A. In that regard, we find that even if the phone records had been provided, neither Complainant’s phone conversation with HRC nor her mistake in not looking at his application to move it forward for consideration proves that discriminatory animus was a factor in the instant complaint. Generally, a complainant's testimony alone has been judged inadequate as proof to establish pretext; and a complainant's subjective belief that the management actions at issue were the result of discrimination is insufficient to prove pretext. Bohrer v. Hanes Corp., 715 F.2d 213 (5th Cir. 1983). See also Elliott v. Group Medical & Surgical Serv., 714 F.2d 566 (5th Cir. 1983). Also notable is that HRC’s coworker to whom Complainant allegedly spoke did not provide witness testimony; and Complainant’s statements concerning that coworker was only brought up on appeal. Importantly, as to the Schedule A hiring authority, 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 (Jul. 30, 2010). Complainant also contended that his complaint did not concern his non-selection. Yet he requested on appeal that the Agency determine if any of the other referred Schedule A applicants scored below 84.48; and argued that a 30 percent Veteran who had been selected for the original position was outside his protected group. Therefore, we find it necessary to address Complainant’s request and other contentions regarding his non-selection in order to put the matter to rest. 2019000655 6 The Commission’s case law is replete with cases supporting the principle that, absent a showing that Complainant was the best-qualified candidate, management did not demonstrate discriminatory animus when the most qualified candidates were selected. See e.g. Judson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141750 (May 26, 2016) (declining to find a pretext of discriminatory action when the Complainant was not selected due to his application rating of five out of eight candidates); Whitfield v. Dep't of the Army, EEOC Doc. 0120082612 (Jul. 11, 2012) (finding that the Complainant failed to show discrimination when the Complainant's qualifications were not plainly superior to the selectees for two separate postings); King v. Dep't of Veterans Affairs, EEOC Appeal No. 012022423 (Nov. 2, 2012) (Complainant was not ranked among the top candidates and presented no evidence of pretext). Here, HRC indicated that she did not look at any applicants that scored below 84.48, and Complainant had received a score of 72.59. Just like the Complainant in King, Complainant was not ranked among the top candidates; and he presented no evidence of pretext. Therefore, it is immaterial for the Agency to make Complainant’s requested determination because record evidence already shows that the three best qualified applicants had been considered for the position; and Complainant was not one of them. In sum, we find that the Agency did not discriminate against Complainant when it did not refer or select him for the position of Office Assistant/Technician at the Agency’s NNSA in Oak Ridge, Tennessee. Complainant has failed to show by a preponderance of the evidence that the Agency discriminated against him. 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 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). 2019000655 7 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 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. 2019000655 8 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 19, 2020 Date