Palmer N.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Apr 18, 2018

0120161067 (E.E.O.C. Apr. 18, 2018)

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

Palmer N.,1
Complainant,

v.

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

Appeal No. 0120161067

Agency No. DLAC-15-0041

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the December 23, 2015 final agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a former Equipment
Specialist, GS-1670-11, with the Agency’s Aviation division in Cherry Point, North Carolina. In
February 2002, Complainant retired from the Agency on disability retirement. Complainant is
an incomplete quadriplegic and utilizes a wheelchair. In August 2014, Complainant applied for
two positions as a Schedule A2 applicant with the Agency’s Aviation Customer Operations
Directorate in Cherry Point. Complainant applied for a GS-2010-12 Supervisory Inventory

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.

2 Schedule A is a hiring authority that allows federal agencies to hire certain individuals through
a non-competitive process. It allows individuals with an intellectual disability, severe physical
disability, or a psychiatric disability to be hired through a non-competitive hiring process.
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Management Specialist position advertised under Job Opportunity Announcement No. DLAAvn-
14-1201169-MP, and a GS-2010-11 Lead Inventory Management Specialist position advertised
under Job Opportunity Announcement No. DLAAvn-14-1216652-MP.

On October 6, 2014, Complainant received two letters from the Agency’s Human Resources
Services in Columbus, Ohio (DHRC). One letter stated that he was not eligible for the Lead
Inventory Management Specialist position because he was not within the area of consideration
for the position. The second letter stated that he was not eligible for the Supervisory Inventory
Management Specialist position because he did not meet the minimum education or experience
required for the specialty and grade. Complainant contacted DHRC and asked why he was not
considered. The Human Resources Specialist (HRS-1) informed him that he was not qualified
for the Supervisory Inventory Management Specialist position and he was not in the area of
consideration for the Lead Inventory Management Specialist position as he was receiving a
disability annuity and the positions were not open to reemployed annuitants. Complainant
disagreed with HRS-1’s interpretation of the policy and stressed that he had applied as a
Schedule A applicant.

On October 28, 2014, DHRC sent Complainant a letter stating that after further review, he
should have been found eligible for the Lead Inventory Specialist Position. The letter further
explained that Complainant had initially been designated as retired federal employee; however,
further investigation revealed that he was indeed eligible to apply as a Schedule A candidate.
Therefore, in an attempt to correct their mistake, Complainant was advised that he would receive
priority consideration for the first Lead Inventory Specialist position at Cherry Point for the next
year.

On February 23, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of disability when, after he applied for Job Opportunity
Announcements (JOA) DLAAvn-14-1201169-MP, Supervisory Inventory Management
Specialist, GS-2010-12, and DLAAvn-14-1216652-MP, Lead Inventory Management Specialist,
GS-2010-11, as a Schedule A external applicant, he learned on September 26, 2014 and October
6, 2014, that he was not referred, and was determined to be unqualified and outside the area of
consideration because he is receiving disability retirement

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not respond within the timeframe provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that officials had articulated legitimate, nondiscriminatory
reasons for its actions. DHRC officials stated that they did not forward Complainant for
consideration for the Lead Inventory Management Specialist position because they did not
believe that he fell within the area of consideration. The position was advertised stating that
reemployed annuitants would not be considered; however, upon further investigation, DHRC
determined that Complainant was a Schedule A applicant and fell within the area of
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consideration. Once DHRC learned of the mistake, they issued Complainant a letter granting
him priority consideration for the next Lead Inventory Management Specialist position
advertised at Cherry Point.

With respect to the Supervisory Inventory Management Specialist position, DHRC explained
that they did not forward Complainant for further consideration because they did not believe he
possessed the necessary skills for the position. The Human Resources Specialist (HRS-2) stated
that Complainant “lacked specialized experience, knowledge of production organization, and
multiple production methods.”

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was qualified for the Supervisory Inventory
Management Specialist position and questioned who made or reviewed this determination.
Complainant argues that the Agency failed to follow policies and directives to employ
individuals with disabilities. Accordingly, Complainant requests that the Commission reverse
the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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, the Commission applies 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) he is an “individual with a
disability”; (2) he is “qualified” for the position held or desired; (3) he 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. 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 his obligation to show by a preponderance of the evidence that the Agency acted on the
basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Serv. Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
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In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the Commission finds that Complainant failed to present evidence to rebut the
Agency’s legitimate, nondiscriminatory reasons for its actions. More specifically, as to the
Supervisory Inventory Management Specialist position, HRS-2 stated that Complainant’s
application was reviewed; however, Complainant lacked the specialized experience needed for
the position based on his resume when reviewed with the crediting plan and position description.
ROI, at 750. In particular, HRS-2 affirmed that Complainant’s resume did not demonstrate that
he had the knowledge of production organization and multiple production methods required of
the position and as stated in the vacancy announcement. Id. As a result, Complainant was not
referred for further consideration.

With regard to the Lead Inventory Management Specialist position, HRS-2 confirmed that
officials erroneously determined during their initial review that Complainant was outside the area
of consideration based on their belief that he was a retired federal employee. ROI, at 732, 750.
Upon further review, officials realized that Complainant was eligible and should have been
considered as a Schedule A applicant. Id. at 750. To rectify the error, HRSC informed
Complainant that he would be given priority consideration for the next Lead Inventory
Management Specialist position that became available for the next year. Id. at 732.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Regarding the Lead Inventory Management Specialist position, the Commission notes that the
focus of the pretext inquiry is not on whether the Agency made a mistake or exercised poor
judgment. Pretext does not require that an agency’s business decision be impeccable. Rather,
the focus is on whether there was discriminatory animus on the part of the Agency when it
engaged in the challenged conduct. Furthermore, as to the Agency’s evaluation of
Complainant’s qualifications for the Supervisory Inventory Management Specialist position, in
the absence of evidence of unlawful discrimination, the Commission will not second guess the
Agency’s assessment of the candidates’ qualifications. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. at 259.

As Complainant did not request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds no persuasive evidence that Complainant’s disability was a factor in any of the Agency’s
actions. At all times, the ultimate burden remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reasons were not the real reasons and that the
Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden.
As a result, the Commission finds that Complainant has not established that he was subjected to
discrimination as alleged.
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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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 18, 2018
Date