Farah S.,1 Complainant,v.C.D. Glin, President, African Development Foundation, Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

2019000709 (E.E.O.C. Dec. 14, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Farah S.,1
Complainant,

v.

C.D. Glin,
President,
African Development Foundation,
Agency.

Appeal No. 2019000709

Agency No. ADF18BC0002

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 11, 2018
final decision concerning an equal employment opportunity (EEO) complaint claiming
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as an Auditor, 0511, GS 9 at the Agency’s
Office of the President, Office of Internal Audits in Washington, District of Columbia

On December 22, 2017, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her based on disability2 and reprisal for prior protected EEO activity when
by letter dated October 19, 2017, the President and Chief Executive Officer (“CEO”) advised
Complainant that the Agency could not noncompetitively convert her to a permanent position.

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 Complainant clarified in an affidavit that she has migraine headaches, high blood pressure, and
depression.
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After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge or a final decision within thirty days of receipt of the correspondence. Complainant
requested a final decision.

On October 11, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b) finding no discrimination.

The instant appeal followed. On appeal, Complainant argues that the Agency failed to convert
her to a career position after her two-year employment term expired. Complainant further argues
that if the Agency claims that “budgetary constraints” was the reason for not converting
Complainant to a permanent position, the Agency should have provided Complainant an
opportunity for an interview for one of the Financial Management Analyst (“FMA”) positions
before her November 15, 2017 termination date. Complainant also argues that the Agency
“ignored [her] qualifications and overlooked her disability and her right to apply as a person with
disabilities under the Schedule A hiring authority.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. 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, non-discriminatory reason for its actions. See Texas
Department of Community 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 Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).3

3 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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The Agency articulated legitimate non-discriminatory reasons for its actions for its decision not
to noncompetitively convert Complainant to a permanent position. The Agency’s CEO (no
disability) was the responsible management official who decided not to noncompetitively
convert Complainant to a permanent position following her completion of the Pathways Recent
Graduates Program (“Pathways”). The CEO stated that he did not convert Complainant due to
“budgetary uncertainty” and “proposed agency elimination in fiscal year 2018.” The CEO
explained that the completion of the Pathways program only ensures eligibility for conversion
and does not guarantee conversion. The CEO further indicated that he informed Complainant by
letter, dated October 19, 2017, that the Agency did not have a permanent position for which
Complainant could be considered for noncompetitive conversion by the end of her two-year
Pathways appointment ending on November 15, 2017.

The record includes a copy Executive Order 13781 Comprehensive Plan for Reorganizing the
Executive Branch, dated March 13, 2017. The Executive Order directs the “Director of the
Office of Management and Budget to propose a plan to reorganize governmental functions and
eliminate unnecessary agencies.”

A copy of the Administration’s 2018 Budget Blueprint indicates that the Agency would be
eliminated in fiscal year 2018 and “orderly termination of agency functions would begin on
October 1, 2017.”

The October 9, 2017 letter to Complainant from the CEO indicates that conversion to a
noncompetitive permanent position is at the Agency’s discretion. The letter further states that
the Agency did not have a permanent position available “due to current budgetary constraints
and a restructuring of [the Agency’s] operations.”

The record contains a copy of Complainant’s Recent Graduates Program Participant Agreement
indicating that she began the program on November 15, 2015 with a not to exceed date of
November 15, 2017. The record also contains an informational overview of the Pathways
programs stating that “recent graduates may [emphasis added] be converted to a permanent
position.”

We also address Complainant’s argument, as summarized in her affidavit, on a separate matter:
that on November 9, 2017, she had not been interviewed for the FMA position for which she
applied under Schedule A. We note that this claim was first raised in Complainant’s affidavit and
was not formally accepted by the Agency as an issue for investigation. However, we address this
claim since the Agency addressed this claim in its final decision.
The record supports that the Agency articulated legitimate non-discriminatory reasons for not
interviewing Complainant for one of the FMA positions as November 9, 2017. The CEO
testified that he had “no knowledge to not to interview or not to place Complainant in the [FMA]
position non-competitively under Schedule A hiring for persons with disabilities.” The CEO
explained that he was not aware of the position qualifications or Complainant’s qualifications,
but was aware that Complainant was interviewed for the position on December 14, 2017.
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The Hiring Official (has disability) testified that the certification list from Human Resources
indicated that Complainant, along with “many other candidates,” was “minimally qualified” for a
FMA position. The Hiring Official explained that no interviews had taken place as of November
9, 2017 and therefore no hiring decision had been made at that time. The Hiring Official stated
that Complainant was interviewed on December 14, 2017. The Hiring Official explained that he
relied on Office of Personnel Management (“OPM”) guidance and regulations when he decided
not to non-competitively place Complainant in the FMA position under Schedule A.
Specifically, the Hiring Official cited OPM regulation 36 C.F.R. § 213.3102, and OPM guidance
which states “[w]hile being eligible for a Schedule A appointment will help [applicants] in the
non-competitive process, it will NOT [emphasis in original] guarantee [applicants] a job.”

The record includes a document entitled, The ABCs of Schedule A: Tips for Applicants with
Disabilities on Getting Federal Jobs. The document explains, in pertinent part, that eligibility
for a Schedule A appointment does not guarantee a job, and Agencies have the discretion
whether to use the Schedule A process to hire individuals with disabilities.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful
discrimination based on her disability or reprisal for prior protected EEO activity.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

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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 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.
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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

December 14, 2018
Date