0120082674
12-04-2009
Herman Dennis, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Centers for Disease Control and Prevention) Agency.
Herman Dennis,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Centers for Disease Control and Prevention)
Agency.
Appeal No. 0120082674
Hearing No. 410-2008-00095X
Agency No. HHS-CDC-0068-2007
DECISION
On May 24, 2008, complainant filed an appeal from the agency's April 25, 2008 final order concerning his equal employment opportunity (EEO) complaint alleging 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. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as a Program Assistant in the Epidemiology Investigative Services Branch of the Career Development Division in the Office of Workforce Career Development in the Office of the Director at the agency's Centers for Disease Control and Prevention in Atlanta, Georgia. On February 22, 2007, complainant filed an EEO complaint alleging that he was discriminated against on the bases of race (black) sex (male), and disability (impairments: back and neck) when on December 14, 2006 management cancelled the certificate for a Training Specialist position and declined to fill the position. Complainant claims that he is the only black male in the Office of Workforce Career Development; that he applies for multiple positions for which only women are selected; and that he is often required to perform manual labor despite his disability.
On August 31, 2006, the initial certificate was issued from the Human Resources department. It contained the names of four eligible applicants, including complainant. All four of the applicants were veterans. After reviewing the certificate, management determined that no one on it had the requisite specialized experience for the position and sent it back to Human Resources, requesting that the applicants be reevaluated with a focus on having had experience in "educational accreditation." Management explained that it was seeking an individual who had experience in, and understanding of, the professional accreditation organizations and their role in granting continuing education credits to professionals such as physicians, pharmacists, veterinarians, nurses, scientists and health educators.
On September 20, 2006, the certificate was reissued and complainant's name was not on it. Management declined to make a selection from the second certificate and returned it unused on October 5, 2006 again finding that the certificate lacked applicants who had specialized experience. In the meantime, complainant had appealed to Human Resources, claiming that he was qualified for the position. Human Resources re-evaluated his qualifications and was about to issue a third certificate which included his name. However, when the second certificate was returned "unused," the third certificate was never issued.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the agency's motion for a decision without a hearing and issued a decision without a hearing on April 15, 2008. The AJ found that complainant failed to establish a prima facie case of discrimination for two reasons: (1) he was not qualified for the position; and (2) no one was selected to fill the position. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted a statement on appeal which argues that the agency violated his rights as a veteran. He contends that he was given improper guidance from the agency's EEO office in that his case should have been treated as a "mixed case" because he was a disabled veteran and that the agency violated USERRA when it canceled the certificate and did not help him become qualified for the position. He also argues that he qualified for the position "on his own merit" and that the agency wanted to "pre-select" two non-veteran contract employees. The agency did not submit a response.
ANALYSIS AND FINDINGS
Initially, we remind the complainant that failure to adhere to USERRA does not give rise to an EEO complaint and that this complaint is not "mixed" as he alleges because his status as a veteran is not at issue in this forum and the Merit Systems Protection Board does not take jurisdiction over hiring related cases such as this one. The question before us is whether the agency was unlawfully motivated by either complainant's race, sex or disability when they rejected the first certificate alleging that none of the individuals forwarded for consideration were actually qualified for the position.
This is case involving circumstantial evidence of discrimination. In order for complainant to convince us that this case should be remanded for a hearing, he would have to show that there was a "genuine issue of material fact" in dispute. In other words, he would first have to produce persuasive evidence that he was actually qualified for the position, and specific to this case, he would have to show that he had experience in "educational accreditation." Complainant failed to proffer such evidence. His only rebuttal to management's cancellation is that management wanted to select two contractors rather than selecting a veteran. Complainant does not explain what specific experience and relevant skill set he would bring to the position. Moreover, complainant does not explain what qualifications he offered on appeal to the Human Resources department that would have justified his being returned to the certificate after he was initially rejected by management. At no point in the record or on appeal does complainant address his understanding of professional accreditation organizations and their role in granting continuing education credits.
Complainant also fails to introduce evidence that the two individuals responsible for cancelling the first certificate were likely to be unlawfully motivated by bias against his protected classes. Both individuals stated that he was not in their chain of command, and that at the time they rejected the certificate, they did not know of his race or of his disability. One of the managers also states that in an effort to resolve this complaint, she offered complainant a detail into the continuing education unit so that he could acquire the requisite specialized experience and become qualified for the next vacancy but that he refused the detail opportunity.
Complainant has not offered evidence to rebut management's claim that he was not qualified for the position nor has he created an inference of discrimination that could be justifiably drawn in his favor. His beliefs alone about what motivated management are not enough to survive summary judgment. Accordingly, we conclude that it was appropriate for the AJ to have issued a decision without a hearing on this record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2009
__________________
Date
2
0120082674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013