0120103632
02-07-2012
Christine M. Wu, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Christine M. Wu,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120103632
Agency No. CRC1001016
DECISION
On September 2, 2010, Complainant filed an appeal from the Agency’s
August 27, 2010, final decision concerning her 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. 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 for employment with the Agency.
On December 12, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of disability (arthritis)1
when she was not selected for the position of Economic Assistant, GS-5,
pursuant to Vacancy No. BOS-DEA-09-108.
The Agency conducted an investigation into the complaint. The record
developed during the investigation indicates that Complainant applied
for the position at issue herein via www.usajobs.gov. According to
the vacancy announcement, the core duties for the position included:
(1) contacting previously initiated establishments to price goods and
services; (2) visiting or contacting by telephone assigned housing units
and new construction units to secure initial voluntary cooperation from
inhabitants, managers, or owners and re-pricing rental units for the
Consumer Price Index (CPI); (3) ensuring quality of data collection
by reviewing electronic collection forms completed on a hand-held
personal computer (PC) for internal consistency and for conformance
to survey requirements; (4) providing feedback to the National Office
on a variety of topics; and (5) performing survey support activities
and preparing required administrative reports. Physical duties of the
position included (1) being on one’s feet for several hours or more
while carrying an operating a hand-held PC; (2) walking outdoors on rough
or uneven surfaces; (3) climbing stairs bending, crouching, stooping,
stretching, reaching or similar activities; and (4) travel on a variety
of road surfaces with varying traffic, weather or read conditions.
The record further indicates that the selecting official for the position
did not rank candidates for the position. Instead, the selecting official
received a list of eligible candidates ranked by the Agency’s Office of
the Assistant Secretary for Administration and Management based on their
application responses to vacancy specific questions.2 According to the
record, the selecting official was required to select a candidate who
ranked in the top three on the list of eligibles. Pursuant to Agency
policy, the only way the selecting official would have been able to
choose a candidate not ranked in the top three was if one of the top
three candidates declined the position. However, as a precaution,
according to the Agency, the selecting official regularly interviewed
two or three candidates beyond the top three in the event that a top
rated candidate declined the position.
The record indicates that Complainant made the list of eligibles
for the position but she was not ranked among the top three
candidates. Complainant was ranked fifth. Complainant alleges that during
her interview she advised the selecting official that she was seeking
a part-time position with the Agency in order to work fewer hours due
to her back condition. Complainant further asserts that although she
informed the selecting official during her interview that she could
perform the duties of the position, the selecting official immediately
informed her about the weight of the hand-held computer she was required
to carry and advised that she would not be able to perform the job. The
candidate with the highest ranking score was selected for the position.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC 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 decision concluded that Complainant
failed to prove that the Agency subjected her 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”).
In analyzing a disparate treatment claim under the Rehabilitation
Act, where the Agency denies that its decisions were motivated
by Complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, Complainant must demonstrate that: (1) she is an
“individual with a disability”; (2) she is “qualified” for the
position held or desired; (3) she was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transp., Inc.,
245 F.3d 916 (7th Cir. 2001). The burden of production then shifts
to the Agency to articulate a legitimate, nondiscriminatory reason
for the adverse employment action. In order to satisfy his burden of
proof, Complainant must then demonstrate by a preponderance of the
evidence that the Agency's proffered reason is a pretext for disability
discrimination. Id. If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that
the Agency's reasons were a pretext for discrimination. At all times,
Complainant retains the burden of persuasion, and it is her obligation
to show by a preponderance of the evidence that the Agency acted on
the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983).
Assuming arguendo that Complainant is an individual with a disability
under the Rehabilitation Act, and that she otherwise established a
prima facie of disability based-discrimination, we find that the
Agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not met her burden of showing, by a preponderance
of the evidence, that the Agency's reasons are pretext for discriminatory
animus. The record indicates that Agency policy dictated its selection
of one of the top three ranked candidates to fill the position at
issue in this matter. The record further indicates that Complainant
was ranked fifth by an automated scoring system, not by the selecting
official. Complainant has failed to demonstrate that her non-selection
was based on any discriminatory animus toward her protected class.
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 finding of 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
February 7, 2012
__________________
Date
1 For purposes of analysis, the Commission assumes without finding, that
Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(i).
2 The record describes the DOORS automated scoring system used to rate
an rank applicants based on their answers to questions specifically
relevant to the vacant position which was used to score the applicants,
including Complainant for the position at issue herein.
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0120103632
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103632