0520140314
10-17-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Request No. 0520140314
Appeal No. 0120140428
Agency No. P9-13-0009
DENIAL
The Agency timely requested reconsideration of the decision in Complainant v. Department of Defense, EEOC Appeal No. 0120140428 (April 3, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(c).
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (59) when, in October 2012, it failed to select him for the position of GS-12 Contract Price/Cost Analyst. After reviewing the candidates' resumes, the Selecting Official (SO) had selected an internal candidate for the merit promotion position (Selectee 1 - 41 years of age) and an external candidate for the 852-funded position (Selectee 2 - 51 years of age).
The appellate decision reversed the Agency's final decision and found age discrimination.
Initially, the appellate decision found that Complainant established a prima facie case of age discrimination for the merit promotion position. Specifically, the appellate decision found that SO was aware that Complainant was at least 40 years of age because his resume stated that he entered the U.S. Army in 1972. In addition, the appellate decision found that SO treated Complainant differently by selecting a considerably younger candidate, Selectee 1, for the position. The appellate decision, however, found that Complainant failed to establish a prima facie case of age discrimination for the 852-funded position because he did not meet the 852 eligibility criteria and thus was not qualified for the position.
Next, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for selecting Selectee 1 over Complainant. Specifically, the appellate decision cited SO's statements that he selected Selectee 1 because she was eligible for merit promotion; had a strong resume in contract/pricing, proposal, and subcontractor experience; had a bachelor's degree and a master's degree; and had strong reference checks. In addition, the SO cited SO's statements that he did not select Complainant because Complainant did not rank in the best/most qualified group and ranked lower than fourth among the candidates.
Finally, the appellate decision found that Complainant proved, by a preponderance of the evidence, that the Agency's reasons were pretextual. In finding pretext, the appellate decision determined that Complainant's qualifications (work experience, education, and awards) were plainly superior to those of Selectee 1 and that SO's statements about Complainant's non-selection were unworthy of belief. Regarding qualifications, the appellate decision made the following comparison: (1) Complainant had work experience as a GS-12 Contract Price/Cost Analyst from May 2005 to February 2009 whereas Selectee 1 only had experience as a GS-11 Contract Price/Cost Analyst since June 2009; (2) Complainant had significantly more overall work experience that was relevant to the position (as an auditor, accountant, financial examiner, and industrial property management specialist) whereas much of Selectee's prior work experience was in the educational field (as an office manager, program advisor, operations associate/defined benefits, assistant registrar, educational advising assistant, and associate registrar); (3) Complainant had a master's degree in business administration and a bachelor's degree in accounting whereas Selectee 1 only had a master's degree in education and a bachelor's degree in business administration; and (4) Complainant received numerous awards for his work with the Agency whereas Selectee 1 had not received any awards. Regarding SO's statements, the appellate decision found that, although SO claimed that he did not select Complainant because Complainant did not rank in the best/most qualified group and ranked lower than fourth among the candidates, the record contained no evidence of such a ranking or evaluation of the candidates' qualifications. In addition, the appellate decision found that, although SO claimed that Selectee 1 had strong reference checks, SO did not specify what the asserted references said about Selectee 1 nor was there any documentation in the record about the references.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency contended that the appellate decision involved a clearly erroneous interpretation of material fact or law.
Regarding Complainant's prima facie case, the Agency argued that the appellate decision erred in finding that there was an inference of age discrimination. Specifically, the Agency asserted that the record contained no evidence suggesting that SO knew Complainant's age. In addition, the Agency asserted that the appellate decision should not have separated the two selections because SO made both selections as part of the same process. Moreover, the Agency asserted that the appellate decision ignored SO's selection of Selectee 2, who was not significantly older than Complainant.
Regarding pretext, the Agency argued that Complainant and Selectee 1 had comparable qualifications and that the appellate decision erred in finding that Complainant's qualifications were plainly superior to those of Selectee 1. As to work experience, the Agency asserted that both Complainant and Selectee 1 met the vacancy announcement's requirement of specialized experience at the GS-11 level and that nothing in the vacancy announcement indicated that specialized experience at the GS-12 level was more desirable. In addition, the Agency asserted that Complainant's experience as a Contract Price/Cost Analyst was less recent than Selectee 1's experience. Moreover, the Agency asserted that the vacancy announcement did not indicate that experience as an auditor, accountant, financial examiner, or industrial property management specialist was relevant to the position. As to education, the Agency asserted that both Complainant and Selectee 1 met the vacancy announcement's education requirement (a bachelor's degree and 24 semester hours in a business field) and that any differences in the candidates' master degrees were irrelevant. As to awards, the Agency asserted that both Complainant and Selectee 1 received awards for their performance as a Contract Price/Cost Analyst: Complainant in 2005 and 2007, and Selectee 1 in 2011.
Regarding Complainant's arguments on appeal, the Agency argued that the appellate decision should not have considered them because they were unsupported by the record (argument about the Emergency Essential Program) or were hearsay statements (argument about management's intent to decrease the average age of the workforce).
ANALYSIS AND FINDINGS
Upon review, we find that the Agency's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
First, the Agency failed to show that the appellate decision clearly erred in finding that Complainant established a prima facie case of age discrimination for the merit promotion position. Specifically, the record supports the appellate decision's finding that SO was aware that Complainant was at least 40 years of age. Complainant's resume, which SO reviewed, indicated that he entered the U.S. Army in 1972 - approximately 40 years prior to the non-selection. Moreover, the appellate decision appropriately analyzed the merit promotion position and the 852-funded position separately. In a non-selection context, a complainant can establish a prima facie case of discrimination by showing, among other things, that he was qualified for the position at issue. See EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (Sept. 18, 1996); Williams v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). Here, the record reflects that SO selected Selectee 1 and Selectee 2 for two different positions: Selectee 1 for the merit promotion position and Selectee 2 for the 852-funded position. The record also reflects that the two positions involved different eligibility criteria. Because there were two different positions at issue, the appellate decision was correct in analyzing whether Complainant had established a prima facie case of age discrimination for each position.
Second, the Agency failed to show that the appellate decision clearly erred in finding pretext. In its request, the Agency essentially argued that Complainant and Selectee 1 were equally qualified because they both met the minimum specialized experience and education requirements stated in the vacancy announcement. The candidates' resumes, however, supports the appellate decision's finding that Complainant's overall qualifications for the position were plainly superior to those of Selectee 1. In finding that Complainant's qualifications were plainly superior, the appellate decision considered Complainant's GS-12 Contract Price/Cost Analyst experience, prior experience as an auditor, accountant, financial examiner, and industrial property management specialist, and master's degree in business administration. Although the vacancy announcement did not explicitly state that such experience or education was desirable for the position, it is clear from the position description that such experience or education was relevant. For example, the position description stated that the knowledge required by the position included "[k]nowledge of statistical, accounting, analytical, and financial analysis principles and techniques and related business, industry, banking, and public finance operations and practices to evaluate, explain, and defend the government's position regarding the contractor's management and financial capability." Moreover, although Selectee 1's experience as a Contract Price/Cost Analyst may have been more recent, we note that SO did not cite the recent nature of Selectee 1's experience as a reason for Selectee 1's selection. Finally, we emphasize that the appellate decision found that SO's other reasons for not selecting Complainant - reference checks, rankings, etc. - were unworthy of belief. We note that the Agency, in its request for reconsideration, did not address those findings by the appellate decision.
Third, the Agency failed to show that the appellate decision clearly erred with respect to Complainant's arguments on appeal. Although the appellate decision may have mentioned those arguments in the background section, it is clear from the analysis section that the appellate decision did not base its finding of age discrimination on those arguments.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120140428 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
Within one hundred and twenty (120) calendar days of this decision becoming final, the Agency is ORDERED to take the following remedial actions:
1. Offer Complainant the GS-12 Contract Price/Cost Analyst position at DCMA Boeing Philadelphia, or a substantially equivalent position. Thereafter, Complainant shall have 30 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 30-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond his control prevented a timely response. This retroactive placement shall presume Complainant has permanent employment status in the position and include all promotions and monetary remuneration attached to the position.
2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Provide the responsible management official with at least eight (8) hours of training on responsibilities, rights, and obligations under federal equal opportunity laws and regulations. The training must pay particular attention to the laws prohibiting age discrimination.
4. Consider taking appropriate disciplinary action against the responsible management official. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management official has left the Agency's employ, the Agency shall furnish documentation of his departure date.
5. Post a notice in accordance with the paragraph below.
6. Submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its DCMA Boeing Philadelphia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
__10/17/14________________
Date
2
0520140314
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140314