U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120131377 Hearing No. 440-2011-00138X Agency No. 200J07972010100994 DECISION On February 15, 2013, Complainant filed an appeal 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUES PRESENTED Should Complainant's appeal be dismissed because it was prematurely filed? Did the U.S. Equal Employment Opportunity Commission Administrative Judge (AJ) properly sanction Complainant by dismissing his request for a hearing? Did the Agency reasonably accommodate Complainant's disability? Did Complainant establish that he was subjected to disparate treatment on the bases of his age, sex, disability, and in reprisal for prior protected EEO activity when he was not selected for a position and when he was denied training? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-0343-10, at the Agency's National Acquisition Center in Hines, Illinois. On February 11, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (deaf), age (51), and reprisal for prior protected EEO activity when: 1. On or about November 2, 2009, he was not selected for the position of Management Analyst, GS-0343-11/12, Job Announcement Number MPA 09-797-20; 2. On or about January 2010, management failed to provide training from his Individual Development Plan (IDP), specifically Best Value Sources Selecting Using Tradeoff and Evaluating a Contractor's Performance; and 3. On or about November 20, 2009, management failed to provide him with a reasonable accommodation by installing videophones in his work station. 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). Complainant timely requested a hearing. On January 4, 2013, the AJ assigned to the case sanctioned Complainant for failure to respond to the AJ's orders regarding discovery, pre-trial submissions, and motions. The AJ found that Complainant failed to show good cause for why his request for a hearing should not be dismissed, and as a result the AJ dismissed the request for a hearing and remanded the complaint to the Agency for a final decision. Prior to the Agency issuing a final decision, Complainant filed this appeal with the Commission, appealing the AJ's dismissal of the hearing request. Subsequently, the Agency issued a final decision on June 10, 2013, 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. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ improperly dismissed his request for a hearing and remanded his complaint back to the Agency for a final decision. Complainant stated that the AJ should not have dismissed his case because of his attorney's untimeliness, and instead should have looked at the merits of his case. In opposition to the appeal, the Agency noted that Complainant's appeal was premature. The Agency contends that the Commission should affirm its final decision because a preponderance of the evidence of the record does not establish that Complainant was subjected to discrimination on the bases of age, sex, disability, or reprisal for prior protected EEO activity. 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. (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"). Premature Appeal We note that Complainant prematurely filed this appeal before the Agency issued a final decision. However, the Agency subsequently issued a final decision, so Complainant's appeal is now ripe for consideration. See Hebb v. U.S. Postal Service, EEOC Appeal No. 0120072789 (July 1, 2009) (Finding that while Complainant's appeal was premature, the Agency subsequently issued a final decision and Complainant's appeal was now perfected). Therefore we will analyze the appeal below. AJ's Dismissal of the Hearing Request Here, the AJ dismissed Complainant's request for a hearing after finding that Complainant failed to respond to the AJ's orders regarding discovery, pre-trial submissions, and motions. Our regulations state that an AJ may dismiss a complaint as a sanction for failure to cooperate pursuant to the provisions of 29 C.F.R. § 1614.109(f)(3). See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). The sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the Complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Department of Transportation, EEOC Appeal No. 01870232 (March 4, 1988). We note that Complainant received a July 8, 2011 Acknowledge and Scheduling Order (Order), which ordered the parties to initiate discovery and file prehearing submissions, including any dispositive motions, within 75 days. The Order also warned that a failure to file submissions, a failure to respond to dispositive motions, and/or a failure to follow the orders of the AJ could result in sanctions, including dismissal of the hearing request and the complaint remanded back to the Agency for a final decision. The record shows that while the Agency timely initiated discovery, Complainant never initiated discovery in this matter. Further, Complainant was granted an extension on October 14, 2011, to file prehearing submission by February 11, 2012, but he never submitted anything. Complainant also failed to respond to the Agency's Motion for Summary Judgment by the due date of April 27, 2012. The AJ issued an Order to Show Cause on August 13, 2012, and the AJ ordered Complainant to respond by August 31, 2012, to show good cause why his hearing request should not be dismissed for failure to prosecute. Complainant responded to the Order to Show Cause five days late. In that response Complainant's counsel responded that he failed to comply with the deadlines because of an illness and his heavy caseload of fifty active cases as a solo practitioner. The Agency responded to Complainant's response by showing that Complainant's counsel had 12 cases active in federal court during the pendency of this case, and none of them had unusual or extraordinary activity during that time that would excuse his failure to comply with the time frames in this case. Additionally, the Agency provided evidence that Complainant's counsel has a long history of failing to comply with court-ordered deadlines, and his failure to comply was so notorious that one court took the extreme step of placing counsel's name on a list of attorneys who fail to meet ordered deadlines and barred him from filing any document "instanter." We agree with the AJ's conclusion that this evidence, combined with Complainant's failure to respond to many of the AJ's Orders and deadlines, established that he did not present good and sufficient cause to justify his failure to file a response to dispositive motions and file prehearing submissions. We note that Commission regulations provide that a Complainant is responsible at all times for proceeding with the complaint even if he or she has designated a representative. 29 C.F.R. § 1614.605(e). Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120132280 (Aug. 29, 2014) (Complainant is still liable for compliance with timelines even if the fault is attributable to his representative); Kennedy v. U.S. Postal Serv., EEOC Request No. 05950157 (Aug. 10, 1995) (when Complainant has voluntarily entrusted representation to an attorney, complainant may not avoid the consequence of choice by arguing the attorney did not perform competently). As a result, we find that the AJ did not abuse his discretion when he dismissed Complainant's request for a hearing with prejudice. Request for a Reasonable Accommodation Complainant alleged that management failed to reasonably accommodate his disability when on or about November 20, 2009, they failed to install videophones in his work station. Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish disability discrimination, complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. The Agency does not dispute that Complainant is an individual with a disability. The record reveals that in late September 2009, Complainant requested a videophone directly from the Defense Department's Computer/Electronic Accommodations Program (CAP) without going through his chain of command. In early October 2009, CAP approved Complainant's request and agreed to fund the videophone. The Agency's Information Security Officer (ISO), was notified that CAP was providing a videophone for Complainant. The ISO stated that the Agency's security procedures required him to obtain approval for the installation of the videophone from the Enterprise Security Configuration Control Board (ESCCB), which is a Department level entity that ensures that external connections to the Agency's network infrastructure are secure. The ISO said that he sent the request to the ESCCB on October 13, 2009. The request was approved on December 16, 2009, and the videophone installation was completed on December 17, 2009. The record establishes that Complainant was provided a reasonable accommodation when the videophone was installed on December 17, 2009. We also find that the delay in installing the phone was not unreasonable, as the Agency's policies require that external connections to the Agency's internal infrastructure, such as videophones, meet all security requirements and get prior approval from ESCCB. As a result, we find that the Agency did not violate the Rehabilitation Act. Disparate Treatment Complainant alleged disparate treatment on the bases of age, sex, disability, and reprisal for prior protected EEO activity when he was not selected for a position and when he was denied training listed on his IDP. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she 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. See 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. See Texas Department of Community 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Here, we will assume without so finding that Complainant established his prima facie case of age, sex, disability, and reprisal discrimination. The Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to the non-selection claim, the selecting official stated that Complainant was interviewed for the position and ranked sixth out of the seven applicants who were referred for consideration for selection. The selecting official selected the top four candidates for the position. The selecting official stated that Complainant did not rank as high as the Selectees in experience in analyzing lines of data, and his answers during the interview were repetitious. Ultimately, Complainant was not selected for the position because he did not rank high enough to be selected. With regard to the training, Complainant's supervisor stated that Complainant never requested Best Value Sources Selecting Using Tradeoff and Evaluating a Contractor's Performance training. The supervisor noted that he did approve three training requests for Complainant during the four months prior. In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward his age, sex, disability, or prior protected EEO activity. We note that in a non-selection case, pretext may be demonstrated in a number of ways, including a showing that Complainant's qualifications are observably superior to those of the Selectee. See Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Department of Education, EEOC Request No. 05970561 (August 6, 1998). Complainant stated that he was more qualified than the Selectees. To support this assertion Complainant stated that his 26 years of experience makes him more qualified for the position. We note that number of years of experience, alone, is insufficient to establish that someone's qualifications are observably superior. See Kopkas v. United States Postal Service, EEOC Appeal No. 0120112758 (Oct. 13, 2011). Complainant also stated that he has cataloging experience, which three of the Selectees lack. However the selecting official stated that he did not believe that cataloging experience was as important of a selection factor for this position. Complainant noted in the record that he was told he didn't get the position because of the Selectees' more extensive education background. The record shows that while Complainant has one educational degree, the four Selectees each have two or more educational degrees. We note that an Agency is free to consider the education of the applicants in making selection decisions. Complainant v. Dep't of Navy, EEOC Appeal No. 0120131000 (July 1, 2015). Complainant stated that he believes he was discriminated against because in the past there were more females than males promoted in his office. The record shows that the four Selectees for the Management Analyst positions were two females and two males. Complainant did not provide any evidence to support his assertion that historically more females than men are promoted in the office. Additionally, the record establishes that three of the Selectees were over 50 and one was younger than Complainant. Two of the Selectees stated that they were not disabled; the disability status of the other two is unknown. The Selectees' prior protected EEO activity is unknown. The record supports the Agency's articulated reason that it did not select Complainant because he did not score high enough on his application package. Complainant scored sixth out of the seven applicants who were interviewed with a score of 73, and the other individuals who were not selected scored 74 and 68. The Selectees scored 83, 82, 81, and 79. There is no evidence in the record that would indicate that discriminatory animus influenced the scoring of the applicants. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. See Texas. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Complainant did not provide evidence in the record that would establish by a preponderance of the evidence that unlawful discrimination played a role in the selection decision. With regard to the training, Complainant did not counter the Agency's assertion that he never requested the training. Instead, Complainant stated in his response to the investigator's questions on this issue, "I did not request this training class" and "I did not do anything to request this training class." Report of Investigation, Complainant's Sworn Responses at 11. Further, the record indicates that this class was for contractors, and Complainant was not a contractor. There is no evidence in the record that Complainant was denied this training due to discriminatory motivations towards his sex, age, disability, or prior protected EEO activity. Beyond Complainant's bare assertions and subjective beliefs, there is no evidence in the record to support Complainant's allegation that he was discriminated against based on his age, sex, disability, or prior protected EEO activity. 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 because a preponderance of the evidence in the record does not establish that Complainant was subjected to discrimination as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, 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 (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 Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M Carlton M. Hadden, Director Office of Federal Operations September 17, 2015 __________________ Date 2 0120131377 2 0120131377