0120092027
08-12-2011
Marvin Porter, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Marvin Porter,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092027
Agency No. ARUSAR07JUL02877
DECISION
On April 10, 2009, Complainant filed an appeal from the Agency’s
February 27, 2009, final decision 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). 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
an applicant seeing a position with the Agency. The record indicated
that, on April 30, 2007, Complainant submitted an application for a
Staff Administrative Assistant, GS-0303-08, under Vacancy Announcement
number NCDE0795243D. Complainant did not get a response. As such,
he submitted a follow-up letter in June 2007, requesting that the Agency
provide him with reasonable accommodations in the application process.
He asked that the Agency contact him for all vacancies for which he was
qualified and that he be interviewed. Complainant did not get a response.
Complainant contacted the Agency’s Central Resume Processing
Center (CRPC) on August 1, 2007, inquiring about the position and
his accommodation requests. The CRPC Representative (Representative)
investigated the situation. The Representative noted that due to the
high volume of inquiries, Complainant’s package was overlooked, as
such, Complainant was not contacted as he had requested in June 2007.
The CRPC representative indicated that Complainant’s resume was not
in the correct format for scanning into the Agency’s RESUMIX (the
Agency’s resume database). The Representative also noted that a local
agency official could assist him with his application. Complainant
rejected the offer. Further, Complainant was not selected for the
Staff Administrative Assistant position. The record indicated that the
vacancy closed on April 27, 2007, however Complainant’s application on
an old application form was submitted late on April 30, 2007. Further,
the CPRC Representative requested supplemental data which Complainant
never provided. As such, Complainant was not selected for the position
in question.
On November 29, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (Black), disability
(blind), age (55), and reprisal for prior protected EEO activity under
Title VII, the ADEA, and the Rehabilitation Act when:
1. The CPRC failed to reasonably accommodate Complainant’s
disability in the application process for the position of Staff
Administrative Assistant when Complainant was not referred for the
position in question.
2. From April 30, 2007 to the present, the CRPC failed to reasonably
accommodate Complainant's disability in the application process by not
establishing a procedure to continuously notify Complainant of and refer
Complainant for all suitable, vacant, funder positions commensurate with
Complainant's qualifications and skills with the Agency; and,
3. The CRPC failed to modify the application hiring process and
failed to notify Complainant of existing vacancy announcements for which
Complainant may be qualified.
The Agency initially dismissed the compliant. However, the Agency’s
dismissal was reversed in Porter v. Dep’t of the Army, EEOC Appeal
No. 0120081465 (April 18, 2008). 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 EEOC Administrative
Judge (AJ). When Complainant did not request a hearing within the
time frame provided in 29 C.F.R. § 1614.108(f), 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.
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. (November 9, 1999) (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”).
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for
its actions. Texas 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.
St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In claim (1), Complainant indicated he was discriminated against when he
was not referred for selection for the Staff Administrative Assistant
position. Assuming, arguendo, however that complainant established a
prima facie case of discrimination on the bases of race, sex, disability,
age, and reprisal, the Commission finds that the agency articulated a
legitimate, nondiscriminatory reason for his non-selection. The record
indicated that Complainant provided his application after the closing of
the vacancy announcement. In addition to the application being submitted
past the closing of the announcement, the CRPC Representative reviewed
Complainant’s application and found that the application was lacked
the supplement data needed for consideration and his resume was not on
the correct form or format. We further determine that Complainant has
not shown that the Agency’s reasons were pretext for discrimination.
Reasonable Accommodation
In his complaint, Complainant also alleged that he was denied reasonable
accommodation during the specific application for the Staff Administrative
Assistant position and in the general hiring process within the Agency.
Regarding applicants for employment, the Commission's policy states,
“An employer must provide a reasonable accommodation to a qualified
applicant with a disability that will enable the individual to have
an equal opportunity to participate in the application process and to
be considered for a job (unless it can show undue hardship).” EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, No. 915.002, Question 13
(as revised October 17, 2002). For purposes of analysis only, we assume
coverage under the Rehabilitation Act.
In claim (1), Complainant alleged that he was denied a reasonable
accommodation during the application and hiring process for the Staff
Administrative Assistant position. However, we find that Complainant
has not shown that he was denied a reasonable accommodation. The record
reflects that Complainant provided his application on April 30, 2007,
after the vacancy announcement closed on April 27, 2007. The application
process, and therefore the Agency's obligation to provide a reasonable
accommodation to Complainant, an applicant, effectively ended on April 27,
2007. See Toland v. Office of Pers. Mgmt., EEOC Appeal No. 0120081214
(June 9, 2011).
The Commission notes that the Agency did attempt to assist Complainant in
the application process for the Staff Administrative Assistant position.
The CRPC Representative reviewed the application with Complainant in
August 2007. The CRPC Representative informed Complainant that his resume
was on an old form and the format of his resume was also incompatible
with their RESUMIX database. In addition, the CRPC Representative
indicated that Complainant’s application lacked the required supplement
data for consideration and attempted to obtain it from Complainant.
The Representative indicated to Complainant that she could direct him to
a local official who could assist Complainant in the application for the
Staff Administrative Assistant position. In addition, she offered to get
Complainant the help he needed in getting his resume in the proper format
for RESUMIX; however, again Complainant rejected the offer. Upon review
of the record, the Commission finds that Complainant has not shown that
the Agency failed to reasonably accommodate him as alleged in claim (1).
In claims (2) and (3), Complainant asserted that he was denied reasonable
accommodation when the Agency failed to search for and notify him of
suitable available positions (with the agency or with another agency),
or automatically refer his application, we find that Complainant
has not shown that the Agency was obligated to conduct such searches,
notifications, or referrals on his behalf. Accordingly, the Commission
finds that Complainant has not shown that the Agency failed to reasonably
accommodate him as alleged in claims (2) and (3).
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 finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
August 12, 2011
__________________
Date
2
0120092027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092027