Emanuel W.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Apr 10, 2018

0120161407 (E.E.O.C. Apr. 10, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Emanuel W.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 0120161407

Agency No. PH-15-0187

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 3, 2016, finding no discrimination
with regard to his 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. For
the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency (Defense Contract Management Agency (DCMA)). On July 7, 2015,
Complainant filed his complaint alleging discrimination based on age (over 40), race (African
American), and disability when on April 29, 2015, he became aware that he was not referred to
the selecting official for consideration for the GS-1035-13, Public Affairs Specialist position
with DCMA Headquarters, JOA: SWH15PH6232131358086.

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.
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After completion of the investigation of the complaint, Complainant was notified of his right to
request a hearing before an Equal Employment Opportunity Commission Administrative Judge,
but chose not to do so. The Agency then issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.
Complainant filed this appeal from the Agency’s final decision.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incident. At the relevant time, Complainant, who was employed with the
Defense Information Systems Agency as a Multimedia Specialist, GS-12, in Maryland, was an
applicant for the position at issue with the Agency (DCMA).

The Agency indicated that the area of consideration for the position at issue was current DCMA
employees. Specifically, a Human Resources Specialist indicated that Complainant was not
referred for consideration for the position because he was not a current DCMA employee. The
Human Resources Specialist denied she was aware of Complainant’s age, race, or disability at
the relevant time. The Agency indicated that three applicants who were all current DCMA
employees were referred for consideration for the position. We find that the Agency in the
vacancy announcement for the position at issue specifically indicated that only DCMA
employees were able to apply for the position. Complainant does not contest this.

Complainant claimed that he, with a veteran’s preference status, should have been allowed to be
considered for the vacancy and that the denial of consideration was discriminatory. However,
we find that Complainant failed to show that the Agency’s vacancy announcement which was
opened only for its DCMA employees was motivated by discrimination as alleged. Furthermore,
we find that the Agency’s vacancy at issue did not disallow veteran’s preference status applicants
to apply for the position. On appeal, Complainant reiterates his arguments he previously made,
including his dissatisfaction with the Agency’s vacancy announcement.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that he was denied a
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reasonable accommodation. Based on the foregoing, we find that Complainant has failed to
show that the Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).

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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

April 10, 2018
Date