Herbert P.,1 Complainant,v.David Bernhardt, Acting Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

0120181431 (E.E.O.C. Sep. 25, 2019)

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

Herbert P.,1
Complainant,

v.

David Bernhardt,
Acting Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120181431

Agency No. NPS-17-0556

DECISION

On March 17, 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
March 1, 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. Our review is de novo. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a seasonal Tractor Operator,
WG-07, at the Agency’s work facility in Oneida, Tennessee.

On September 12, 2017, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the basis of his disability (neuropathy, foot injury) when in July 2017,
Complainant was not interviewed or selected for the Tractor Operator position.2

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 The Agency dismissed two additional non-selection claims pursuant to 29 C.F.R. §
1614.107(a)(2) on the grounds that Complainant failed to initiate contact with an EEO Counselor
in a timely manner. The Agency determined that the incidents occurred in August 2016, but
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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). In the decision, the
Agency determined that Complainant failed to prove that he was subjected to discrimination as
alleged.

Complainant had worked with the Agency from April 15, 2016 to September 30, 2016, as a
seasonal WG-7 Tractor Operator. Complainant first applied for the permanent Tractor Operator
position in December 2016, but the position was canceled due to a hiring freeze. Complainant
applied for the position again when it was re-advertised. Complainant stated there were two
postings for the position, one open to all American citizens and another for current Agency
employees under merit promotion. The selectee was chosen from the merit promotion certificate
which omitted Complainant because he lacked the requisite two years of service with the Agency.

Complainant claimed that his disability was a factor in him not being interviewed and selected for
the position. According to Complainant, he has a Veterans Affairs (VA) rating of more than 30
percent disabled. Complainant asserted that he experiences complications from neuropathy in his
lower extremities, which is painful, but affects no major life activities and has no effect on his
ability to perform his job. Complainant stated that he provided management with his VA
paperwork when he first applied for a seasonal Tractor operator position in 2016.

Complainant argued that the Tractor Operator position should have been posted under the
Veterans’ Employment Opportunity Act (VEOA) which would have made him eligible for
employment. Complainant claimed that all of the other Agency jobs posted used the VEOA, and
that it was not utilized here so that he would be ineligible to apply. According to Complainant,
nepotism was also a factor in his nonselection as the selectee’s sister is the Assistant to the
Superintendent. Complainant maintained that had he been on the merit promotion certificate, he
would have been selected because he has 30 years of experience as a Tractor Equipment Operator.

Complainant further claimed that since he is a more than 30 percent disabled veteran, he could
have been placed on a non-competitive list, but that the Chief of Facility Management declined his
request to be placed on this list. Complainant stated that had he been placed on a non-completive
list, he could have been directly placed into the position without having to compete for it.

The selecting official for the Tractor Operator position stated that when he worked with
Complainant, Complainant would complain about his feet hurting at the end of the day.

Complainant did not initiate contact with an EEO Counselor until September 2, 2017, well beyond
the expiration of the 45-day limitation period. Complainant raised no challenges to the dismissal
of these claims on appeal; therefore, the Commission will not address them herein.
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The selecting official stated that nothing other than that suggested to him that Complainant had a
disability, and that Complainant provided him with no medical documentation concerning a
disability. According to the selecting official, he chose to hire from the merit promotion list rather
than the Delegated Examining Unit (DEU) list because he believed the candidates on the merit
promotion list would be a better fit for the opening posted. The selecting official stated that there
were 10 candidates on the merit promotion list and he interviewed the top three candidates after
reviewing the resumes. The selecting official denied that the fact that the selectee’s sister is the
Assistant/Secretary to the Superintendent had anything to do with his selection. The selecting
official noted that the selectee scored higher than the other individuals interviewed and was
considered the best qualified.

The Chief of Facility Management approved the selecting official’s recommendation for the
position at issue. She stated that she was unaware of Complainant’s disability as she had never
received any medical documentation identifying a disability. The Chief acknowledged that
Complainant mentioned that she could hire him directly because he is a veteran. The Chief
asserted that she preferred to have a wide variety of candidates from which to choose.

The Human Resource Specialist stated that the selecting official was free to use either the merit
promotion list or the DEU certificate list. The Human Resource Specialist noted that the merit
promotion list contained only the names of career or career conditional employees with the Agency
as long as they had two years of experience or were reinstatement-eligible. According to the
Human Resource Specialist, had the DEU list been utilized, the selecting official would have had
to clear all veterans before he could have selected a non-veteran from the list.

In the decision, the Agency determined that Complainant failed to establish a prima facie case of
disability discrimination. The Agency stated that the only documentation of any impairment
provided by Complainant was a copy of his VA rating. The Agency noted that Complainant’s VA
rating is 30 percent for intrinsic neuropathy with claw foot, bilateral, and that his overall or
combined rating is 40 percent. The Agency stated that Complainant claimed he was able to fully
perform the duties of his position without any accommodation, and that his impairment did not
affect his ability to perform any major life function. The Agency determined that it could not
conclude that Complainant was an individual with a disability.

Assuming arguendo that Complainant was an individual with a disability, the Agency determined
that management articulated legitimate, nondiscriminatory reasons for not selecting Complainant
for the Tractor Operator position. The Agency stated that the selecting official had the right to
elect which of the two lists to use in selecting a candidate. The Agency noted that the selecting
official believed that applicants on the merit promotion list would be a better fit for the position.
The Agency stated that Complainant’s name was not on the merit promotion cert because he had
been only a seasonal employee and did not have the requisite two years of experience. The Agency
pointed out that Complainant was offered a seasonal position by the selecting official, but
Complainant declined the position on April 24, 2017, noting he had accepted a job with the State
of Tennessee.

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With respect to Complainant’s attempt to establish pretext, Complainant claimed that management
deviated from its custom of advertising these positions under the VEOA so that he would be
ineligible to apply. The Agency noted that the Human Resource Specialist stated that the same
job, which announcement had been canceled in December 2016 due to the hiring freeze, had also
not been advertised under the VEOA. The Agency also rejected Complainant’s argument that
pretext was evident by the Chief’s refusal to place him in the position without competition.
Management stated that it wanted to advertise the position in order to draw a larger pool of
applicants from which to choose. The Agency determined that Complainant failed to establish
that any discriminatory motivation was involved in his nonselection. Thereafter, Complainant
filed the instant appeal.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 generally 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. Corp. 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, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of
the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We shall assume for purposes of analysis, without so finding, that Complainant is an individual
with a disability and otherwise established a prima facie case of disability discrimination. The
Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically,
management officials stated that Complainant was not selected for the Tractor Operator position
because he was not on the merit promotion list as he lacked the two years of experience needed to
be included on the list. According to the selecting official, he chose to hire from the merit
promotion list rather than the DEU list because he believed the candidates on the merit promotion
list would be a better fit for the opening posted. Complainant was not on the merit promotion list
because he had only worked at the Agency for five and half months and was therefore not
interviewed for the position. Complainant was, however, offered another seasonal position with
the Agency in April 2017, but declined it because he had accepted a full-time position with the
State of Tennessee.
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Ultimately, management selected the selectee as he was ranked as one of the top three candidates
and scored the highest in his interview. We find that the Agency articulated a legitimate,
nondiscriminatory explanation for its selection decision.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). With
respect to his non-selection claim, one way Complainant can establish pretext is by showing that
his qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may
establish pretext as to his non-selection claim.

With regard to the arguments presented by Complainant to establish pretext, we find they are not
sufficiently persuasive to prove that discriminatory motivation was a factor in his nonselection.
Complainant argues that use of the VEOA would have made him eligible for selection. We
observe that the VEOA was not utilized in the prior vacancy announcement for this position that
was canceled. We do not discern any basis to believe that its non-usage in the instant selection
process is indicative of disability discrimination. We also do not consider the Chief’s decision to
not hire Complainant noncompetitively based on his veteran status as persuasive evidence of
disability discrimination. The Chief offered a legitimate explanation by stating that she preferred
to have a wide variety of candidates from which to choose. As to Complainant’s contention that
nepotism occurred, we note that nepotism by itself does not violate the Rehabilitation Act if
disability was not a factor in the nonselection.

The Commission finds that Complainant failed to show that his qualifications for the position at
issue were plainly superior to those of the selectee. In this case, the selectee had attributes that
justified his selection, and the selection official affirmed that he believed the selectee was better
equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the
Commission will not second guess the Agency's assessment of the candidates' qualifications. Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 259.

The Commission finds no persuasive evidence that Complainant's disability was a factor in any of
the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate
by a preponderance of the evidence that the Agency's reasons were not the real reasons and that
discriminatory animus was a factor in its actions. Complainant failed to carry this burden. As a
result, the Commission finds that Complainant has not established that he was subjected to
discrimination as alleged.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.
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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
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

September 25, 2019
Date