Logan G.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jun 8, 2018

0120162216 (E.E.O.C. Jun. 8, 2018)

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

Logan G.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120162216

Agency No. GSA-16-R6-C-0014

DECISION

On June 22, 2016, 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
June 17, 2016, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment.
On November 17, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of disability (speech impairment, learning disability, Post-
Traumatic Stress Disorder, lower left-side shoulder injury, and hearing loss) and age (52) when,
on November 2, 2015, he received notification that he was not referred for the position of Lease
Administration Specialist (LAS), GS-1101-07, under Vacancy Announcement Number
1612019APOTR.

After the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an EEOC Administrative Judge

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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(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 him to discrimination as alleged.

FACTUAL BACKGROUND

The undisputed record shows that the LAS position was posted under the Recent Graduate
Program. Applications for the position were accepted from graduates who received a qualifying
Associate, Bachelor, Masters, Professional, Doctorate, Vocational or Technical degree or
certificate from a qualifying educational institution within the past two years.2

The undisputed record also shows that the qualification requirements for the position are as
follows: “A. SPECIALIZED EXPERIENCE: One year of specialized experience equivalent to the
GS-05 level in the Federal Service. Specialized experience is defined as experience applying short
term planning and implementation of lease administration enforcement programs; and interpreting
and enforcing lease contracts. Examples of qualifying experience includes assisting in evaluating
building operations and/or building management programs to achieve customer consent;
recommending strategies to optimize building performance. OR, B. EDUCATION: One full year
of graduate level study in a field that provided the knowledge, skills, and abilities necessary to
perform the work of a Lease Administration Specialist. OR, C. Superior Academic Achievement
[SAA] OR, D. A combination of specialized experience and graduate level education as described
in "A" and "B" above that, when combined, fulfills the requirements.”

The record also shows that three Human Resource Specialists (HR1, HR2 and HR3) conducted
three separate reviews of Complainant’s application packet. All three concluded that
Complainant's application did not meet the qualification requirements for the position because: (a)
his resume did not reflect at least one year of specialized experience performing lease
administration work as defined above in Part A; (b) his transcript did not reflect one full year of
graduate level study as outlined above in Part B; and, (c) his transcript did not show that he met
the requirements for superior academic achievement (i.e., GPA of 2.95 or greater, class standing,
or honor society membership) as set forth in the vacancy announcement.

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

2 Preference eligible veterans precluded from applying due to military service obligation could
apply up to two years from the date of discharge/release from activity duty, but no more than six
years after the date educational requirements are met.

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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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant 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); McDonnell
Douglas at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). If the Agency articulates such a reason then the burden of proof shifts back to
Complainant who must prove, by a preponderance of the evidence, that the Agency’s explanation
is pretextual. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant may be able to establish pretext with
a showing that his qualifications were plainly superior to those of the selectee. Wasser v. Dep't of
Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981).
We assume for purposes of this decision that Complainant is an individual with a disability within
the meaning of the Rehabilitation Act and has established a prima facie case of discrimination.
Upon review of the record, we find that the Agency articulated a legitimate, non-discriminatory
reason for failing to refer Complainant’s application to the hiring manager for consideration (i.e.,
he did not meet the qualification standards of the LAS position). We also find that Complainant
failed to establish that the Agency’s explanation was a pretext or otherwise motivated by
discriminatory animus.
Complainant asserts that his military experience as an office manager should have been sufficient
to establish his qualifications. However, all three human resource specialists explain that
Complainant’s experience as a military office manager did not reflect specialized experience, (e.g.,
applying short term planning and implementation of lease administration enforcement programs;
and interpreting and enforcing lease contracts). Complainant also alleges that HR2 told him that
the Agency wanted younger and non-experienced persons in the position. HR2 categorically
denies this assertion and testifies that he tried explaining to Complainant that Recent Graduate
Program positions were targeted for recent college graduates of any age who met the position
requirements. Aside from Complainant’s bare, uncorroborated assertions, the record is devoid of
evidence of pretext or discriminatory animus.

CONCLUSION

Accordingly, 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 finding that
Complainant did not establish that he was discriminated against as alleged.
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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).
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.
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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

June 8, 2018
Date