[Redacted], Jody L., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020001596 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jody L.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020001596 Agency No. FS-2019-00324 DECISION On December 3, 2019, 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 November 5, 2019, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to discrimination and harassment based on his disability and age. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for three separate positions at the Agency’s locations in Albuquerque and Santa Fe, New Mexico. On March 22, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (deaf) and age (62) when: 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. 2020001596 2 1. on February 10, 2019, Complainant was not selected for a Budget Analyst position in Albuquerque, New Mexico; 2. on February 6, 2019, Complainant was not selected for an Information Technology Project Manager position in Albuquerque, NM; and 3. on November 14, 2018, Complainant was not selected for a Public Affairs Specialist position in Santa Fe, NM. The record indicates that Complainant had also alleged that: 1) on June 18, 2018, Complainant was not selected for a Public Affairs Specialist position in Albuquerque, NM (Vacancy Announcement Number not provided); and 2) from November 9, 2016 to June 15, 2018, the Agency's Schedule A Specialist refused to assist Complainant in submitting applications under Schedule A. The Agency dismissed both claims, explaining that the alleged incidents occurred more than 45 days prior to when Complainant initiated EEO Counselor contact on December 14, 2018, in the instant matter. Claim 1 Complainant alleged that he applied for the Budget Analyst position through USA Jobs. Complainant stated that he was referred to the Selecting Official (SO), but he was not interviewed for the position. Complainant did not know if interviews were held. Complainant contended that his non-selection was based on his disability and his age. Complainant asserted that the hiring personnel saw his Schedule A letters showing Complainant's disability and his degreed dates and transcripts. Complainant asserted that the hiring personnel considered providing an interpreter for Complainant's interview an undue burden. Complainant contended that his non-selection constituted harassment because he felt blacklisted due to his age and disability. A Responsible Management Official (RMO1) stated that Complainant was not interviewed because Complainant did not meet the basic criteria for the position. RMO1 noted that Complainant's experience and background is in television production and film editing. RMO1 added that the candidate selected for the position (Selectee1) was chosen based on Selectee1’s education, financial background, and his extensive experience in budget finance. RMO1 asserted that he was unaware of Complainant’s age and disability. A Human Resource Specialist (HRS) provided supporting statements, adding that neither a separate Certificate for Schedule A applicants nor any information regarding the age or disability status of any applicant was provided to the RMO1. 2020001596 3 Claim 2 Complainant stated that he applied for the Information Technology Project Manager position and was placed on the referred list. Complainant alleged that the selecting official (RMO2) did not conduct interviews for the position. Complainant reiterated his belief that his non-selection was based on his protected classes, adding that his non-selection was an act of harassment. RMO2 explained that Complainant was not one of the top 3 candidates because his score was rated as zero. RMO2 also explained that Complainant's education and experience were unrelated to the Information Technology Project Manager position. RMO3 stated that Complainant's experience was related to IT support, project management, media, marketing, public relations, and digital communications strategies, which is not the experience management was seeking. RMO2 explained that management was looking for applicants with experience in Forest Service vegetation applications and databases. RMO2 added that Complainant did not have experience in resource vegetation management of the computer applications and databases related to the position. Claim 3 Complainant stated that he applied for the Public Affairs Specialist position, adding that he was referred to the Selecting Official (RMO3), but he was not interviewed. Complainant reiterated his reasons for believing that his non-selection was based on his protected classes. Complainant alleged that the hiring personnel changed the job announcement by removing “individuals with disabilities” as a group permitted to apply. Complainant asserted that the Agency did not want to incur the additional expense for an interpreter. RMO3 explained that the target grade for the position at issue was a GS-9. RMO3 stated that the position was not advertised. He explained that his office did outreach to gauge interest, but their outreach efforts were not considered an announcement. RMO3 also explained that a position is not officially advertised until it is advertised on USA Jobs. RMO3 explained that the Agency made the decision not to advertise the position because a critical position became vacant. RMO3 also explained that the office only had one position that they could fill, and the critical position was priority. RMO3 clarified that the Public Affairs Specialist position has not been filled. He explained that the supervisor for that position went on military leave and did not want to move forward with the hiring process until he returned. In rebuttal, Complainant maintained that RMO1 was aware of his age, as his resume indicated his degree dates. Complainant asserted that the hiring officials ignored his Schedule A status by not affording him the opportunity to interview. Regarding Claim 2, Complainant noted that the announcement did not mention the need for experience in Forest Service vegetation applications and databases. Complainant maintained that RMO2 did not comply with Schedule A policy by selecting the three highly qualified candidates instead of conducting interviews. 2020001596 4 Complainant also maintained that Agencies are not permitted to hire individuals based solely on resumes. Complainant asserted that he was prevented from showcasing his skills, and an interview would have given him that opportunity. Regarding Claim 3, Complainant contended that RMO3's testimony is false because the job was advertised on USA Jobs on June 15, 2018, and November 12, 2018. 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 Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his Appeal statements, Complainant reiterates his allegations, and contests the Agency’s dismissal of his two other claims. Complainant also contests the FAD, indicating that the Agency’s decisions not to interview or hire Complainant for any of the positions for which he applied were a direct result of discrimination against him based on Complainant’s disability. Complainant indicates his interest in an opportunity to present important evidence at a hearing. The Agency did not submit Appeal Statements. 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 Requests for a Hearing After FAD Issuance At the onset, we note Complainant’s request on appeal for an opportunity to present important evidence at a hearing. However, pursuant to 29 C.F.R. § 1614.108, an Agency has an obligation to develop an adequate investigative record. The Agency also has an obligation to inform Complainant of the right to elect/request an AJ hearing or a FAD. Complainant has 30 days to respond upon receiving the information. 2020001596 5 The record in the instant complaint indicates that Complainant was provided the requisite information; and that Complainant timely requested a FAD. Therefore, Complainant’s request on appeal for a hearing is untimely and cannot be granted. We note that because Complainant did not request a hearing or avail himself of the discovery process which would have allowed for an examination of the credibility or lack thereof of the Agency’s explanations, we can only evaluate the facts based on the weight of the evidence presented to us in the instant complaint. Procedural Dismissal - Other Claims The Agency dismissed two claims for untimely EEO counselor contact. The EEO regulations at 29 C.F.R. § 1614.105(a)(1) provide that, “An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” The regulations also state that if a complainant fails to initiate informal contact with an EEO counselor within the time limits set forth in that provision, the allegation in question “shall” be dismissed as untimely. See 29 C.F.R. § 1614.107(a)(2). Here, the alleged incidents in the two dismissed claims occurred more than 45 days prior to Complainant’s initial EEO Counselor contact in the instant complaint. Therefore, we find that the claims were correctly dismissed. Disparate Treatment - Claims 1, 2, and 3 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. Tex. 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination and harassment based on disability and age; we find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for any of the three positions for which he applied. Regarding the position in Claim 1, RMO1 explained that Complainant was not interviewed because Complainant did not meet the basic criteria for the Budget Analyst position citing Complainant’s experience in television production and film editing. The candidate selected for the position was chosen based on education, financial background, and extensive experience in budget finance. 2020001596 6 Regarding the Information Technology Project Manager position in Claim 2, RMO2 stated that Complainant’s background was primarily related to IT support, project management, media, marketing, public relations, and digital communications strategies. However, management was seeking experience in Forest Service vegetation applications and databases; and Complainant did not have experience in resource vegetation management of the computer applications and databases related to the position. Complainant’s experience did not match the management’s desired background and experience. RMO3 indicated that the Public Affairs Specialist position in Claim 3 was never filled; that the position was not advertised; and that the announcement to which Complainant referred was only to gauge interest in the position. Complainant refuted management’s explanations but he presented no evidence to support his allegation of discrimination with respect to Claims 1 and 2. Neither did he provide the alleged USAJOBS announcements posted for the position raised in Claim 3. Instead, Complainant only provided mere assertions and subjective beliefs, including stating, without evidence, that the Agency did not want to incur the additional expense for an interpreter. Complainant also failed to show that his qualifications were plainly superior to those of the selectees in Claims 1 and 2; and it is not the intent of the Commission to substitute its judgment for that of the Agency where discriminatory motives have not been shown. Importantly, 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 (July 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). As such, Complainant’s claims fail, and he is not entitled to his requested relief. As to Schedule A, 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 (Dec. 16, 2014); Hein v. Nat’l Archives and Records Admin., EEOC Appeal No. 0120123266 (Feb. 6, 2013), request to reconsider denied in EEOC Request No. 0520130314 (Aug. 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 (July 30, 2010). 2020001596 7 With respect to Complainant allegations that his non-selections were harassment, we have held that a complainant's testimony reflecting "mere assertions and subjective beliefs" about discrimination is not enough to prove discriminatory harassment. Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000) (indicating that a finding of harassment is precluded by a determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus). 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020001596 8 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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 July 22, 2021 Date