Ralph E.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Jun 26, 2018

0120162653 (E.E.O.C. Jun. 26, 2018)

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

Ralph E.,1
Complainant,

v.

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

Appeal No. 0120162653

Hearing No. 570-2015-00812X

Agency No. DIA-2014-00040

DECISION

On August 17, 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
July 14, 2016, final decision 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. Our review is de novo.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Technical Information
Specialist, Series 1412, GG-12, at the Agency’s Facilities and Services, Mission Services, in
Washington, D.C.

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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On July 29, 2014, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Caucasian), disability (autoimmune disorder,
neuropathy in both feet and arthritis in both arms and shoulders) and age (53) when:

1. On April 3, 2014, Complainant was notified that he was not selected for a GG-1412-
13 Technical Information Specialist position in the IIR Data Management &
Dissemination Services Section.

2. On multiple occasions between March 28, 2014 - April 24, 2014, Complainant’s
Supervisor was unresponsive to his emails and meeting requests.

Complainant subsequently amended his complaint and added the following claims:

3. On August 21, 2014, the Supervisory Program Manager discriminated against him on
the bases of his race, disability, and reprisal (current EEO complaint) when it did not
select him for a GG-0340-12/13 Program Manager position within the IIR Data
Management & Dissemination Services Section.

4. Whether Complainant was discriminated against on the bases of his sex (male) and
religion (Catholic) when on October 2, 2014, he was discussing an issue with a
coworker in his cubical space and his Supervisor approached him and made religious-
related comments, “Are either of you Catholic?” and “Do you know who the patron
saint of hopeless causes is?” Complainant stated that these comments caused him to
feel uncomfortable.

In subsequent amendments to the complaint, the Agency accepted the following claims:

5. Whether Complainant was discriminated against on the bases of disability and reprisal
when on or about October 22, 2014, the Supervisory Technical Program Specialist
assigned him a new program objective that required him to walk from his office space
to the mail room twice a day for mail pick-up, retrieve documents from the scan center,
and take burn tubs to the loading dock. Complainant further claimed that in March
2012, he provided the Agency and his supervisors with medical documentation that
stated his disability limits his ability to walk long distances.

6. Whether Complainant was discriminated against on the basis of reprisal for his prior
EEO activity (instant complaint) when Complainant’s Supervisor created a schedule
that placed Complainant as an anticipated alternate for a GG-13 grade level employee
during the 2014-15 calendar year.

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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew his request.
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Prior to the withdrawal of his hearing request, the AJ issued a Case Management Order wherein
the AJ noted that Complainant clarified that he had withdrawn claims (2) and (5). The Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. 2 With regard to claim (1), Complainant stated that he was interviewed for the position
at issue by the Technical Program Support Manager. Complainant claimed that he was better
qualified than the selectee because he had ten years more experience in the job series, had four
years of college and had done a rotation from 2009-2012 on the Afghanistan/Pakistan Task Force.
Complainant further asserted that had been issued multiple awards and had higher performance
ratings than the selectee.

The Technical Program Support Manager stated that he recommended the selectee to the selecting
official, who was his Supervisor. According to the Technical Program Support Manager, the
mandatory factors for the position were experience with the Joint Distribution System, performing
open source research, performing metrics queries, reports, and collaborating with others both
within and outside the work unit. The Technical Program Support Manager maintained that he
was unaware of the age, disability status, or race of both Complainant and the selectee, the only
two candidates who met the minimal qualified mandatory factors. He stated that the specific
reasons for his selection choice were that the selectee explained the various modules within the
Joint Distribution System as well as the Statements of Intelligence Interest, produced weekly
metrics reports and knew how to update distribution lists. He further stated that Complainant
stated that he touched the Joint Distribution System but that he did not work with the Statements
of Intelligence Interest portion, and lacked direct, hands-on experience. The Technical Program
Support Manager asserted that a college degree was not required for the position, nor did he
consider awards or performance ratings.

The selecting official explained that she chose the selectee based on his resume and interview
write-up. According to the selecting official, Complainant demonstrated very good skills as a
Technical Information Specialist, but that he had not worked in all areas of the Joint Distribution
System such as the Statement Intelligent Interest and the Compartmented Address Book. The
selecting official asserted that the selectee had current working knowledge of all areas of the Joint
Distribution System and was able to articulate the purpose of the Joint Distribution System and
each component, and he provided examples of his performance when creating, modifying, or
suspending accounts.

As for claim (3), Complainant was not selected for the Program Manager position. The selectee
was African-American. The Technical Program Support Manager stated that he recommended the
selectee and another candidate (Caucasian) for the position after reviewing resumes and
conducting interviews.

2 The Agency addressed claim (2) in its decision even though Complainant had previously
withdrawn the claim. Since this matter is no longer at issue, we shall not discuss the Agency’s
analysis of this claim.
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The Technical Program Support Manager explained that they sought a candidate with an
information technology background who had collaborated on technical projects with other offices,
performed database-related tasks, run statistical analysis, data manipulation, and had experience
with various databases such as Microsoft Office products and intelligence databases, as well as
streamlining processes and improving efficiencies.

According to the Technical Program Support Manager, he did not recommend Complainant for
the position because he was vague in response to several interview questions. The Technical
Program Support Manager asserted that the position was highly technical in nature and the selectee
was the most qualified candidate because he was currently a Program Manager and he discussed
collaborating with a number of personnel and databases, programming and other technical issues.
The other official who participated in the interview of Complainant stated that she rated him lower
because his direct experience did not relate to the questions as well as the other candidates’
experience did. The selecting official explained that the selectee demonstrated superior abilities,
including with databases, programming, experience as an Acquisition Program Manager, and
experience as a Business Process Analyst. Additionally, the selecting official noted that the
selectee served as a special assistant to the Deputy Acquisition Executive and as a Contract Officer
Representative, demonstrating his ability to communicate and manage programs at all levels.

The Agency stated that claim (4) was dismissed prior to the investigation on the grounds of failure
to state a claim. Upon further review, the Agency determined that the dismissal was proper as the
matter at issue was an isolated incident involving an inappropriate religious comment that was not
accompanied by any concrete action.

With regard to claim (6), Complainant claimed that a GG-12 should be the backup to a GG-12 and
not a GG-13. Complainant stated that he was concerned that if a GG-13 was out on leave, due to
the higher production requirements, he could potentially fall behind in his own work because he
would not be backing up a GG-12 with comparable production. Complainant’s Supervisor stated
that Complainant was not the primary backup, but was an alternative backup to a GG-13.
According to the Supervisor, she believed Complainant was capable of doing the work and that
although GG-13s have more requirements, they were all performing the same process. The
Supervisor noted that another GG-12 also served as an alternate backup to a GG-13. The
Supervisor further stated that everyone had to have responsibility as a backup to ensure there was
adequate coverage throughout the day and that she was not thinking about grade levels.

The Agency determined that Complainant did not establish a prima facie case of race or age
discrimination with respect to claims (1) and (3). As for the basis of disability, the Agency also
determined that Complainant failed to set forth a prima facie case. The Agency reasoned that the
decisionmakers in claims (1) and (3) were not aware of Complainant’s disability. Further, the
Agency stated that there was no evidence in the record that Complainant formally applied for any
reasonable accommodation for his disability.

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The Agency determined that, assuming arguendo Complainant had set forth a prima facie case
under the alleged bases for claims (1) and (3), it articulated legitimate, nondiscriminatory reasons
for its actions in those claims. The Agency further determined that Complainant failed to establish
that those reasons were pretext intended to hide discriminatory motivation. With regard to claims
(1) and (3), the Agency stated that Complainant failed to demonstrate that his skills were clearly
or plainly superior to the skills of the selectees. The Agency noted that Complainant was ranked
second in the selection at issue in claim (1) and that as to claim (3), Complainant was not
recommended because his answers were vague on five interview questions.

As for claim (6), the Agency determined that Complainant failed to set forth a prima facie case of
reprisal based on Complainant’s failure to show that he was subjected to an adverse employment
action by being designated as an alternate backup to a GG-13 employee. The Agency stated that
assuming arguendo Complainant had established a prima facie case, it presented legitimate,
nondiscriminatory reasons for its action. The Agency noted that Complainant’s Supervisor stated
that there were many more GG-12s than GG-13s and her decision to utilize Complainant in this
instance was based on equitable distribution of workload. The Agency determined that
Complainant failed to show that any discriminatory motivation based on his EEO activity was a
factor in this decision.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that on numerous occasions prior to the selections at issue,
Agency managers inquired of his years of service and when he could retire, and commented that
he was “older than dirt.” Complainant maintains that between 2011 and 2015, only non-white
employees were promoted and/or hired into the section, and that after he transferred to another
unit in April 2015, there were no white employees in the section. Complainant argues that he has
extensive work experience on the Joint Dissemination System from when he served for several
months in 2012 performing the duties of a GG-13. Complainant states that as a Technical
Information Specialist from March 2012 – February 2014, his performance was rated as
“Excellent” and his supervisors stated that he was ready for greater responsibility. Complainant
contends that a three-month detail assignment working with the Joint Distribution System was not
made available to him and was given to the eventual selectee for the position at issue in claim (1).
Complainant states that the detailing of the eventual selectee had the effect of denying him the
opportunity to obtain the experience in the position that the Agency subsequently indicated he
needed for the position. According to Complainant, the assignment of the detail violated Agency
policy against assigning higher level duties/responsibilities non-competitively. With regard to
claim (1), Complainant states that the Technical Program Support Manager did not review either
his or the selectee’s performance evaluations nor did he take into account his more than ten years
of experience in the 1412 job series and his rotational assignments in comparison with the selectee.

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Complainant further claims that the vacancy announcement did not mention the Joint Distribution
System. Complainant argues that the fact he was assigned to back up a GG-13 shows that he was
considered perfectly capable of performing such work.

Complainant states that in addition to the instant complaint, he also filed an EEO complaint in
2008 which involved his Supervisor. With regard to the selection at issue in claim (3),
Complainant points out that the Technical Program Support Manager, an African-American, was
involved in the selection of an African-American just as he had been in the selection involved in
claim (1). Complainant points out that the Technical Program Support Manager and his Supervisor
were notified of the instant complaint less than a month before he interviewed for the position at
issue in claim (3) and that shortly afterwards he received the assignment at issue in claim (6).

In response, the Agency asserts that Complainant falsely claims that he was not afforded the same
opportunity to perform the GG-13 detail duties before the selectee in claim (1) was competitively
selected for the position at issue in claim (1). The Agency states that Complainant received the
same email solicitation for the detail opportunity that was sent to the selectee and all other GG-12
employees in Complainant’s division. The Agency points out that the difference between
Complainant and the selectee is that Complainant failed to express an interest in the detail
opportunity.

With regard to claim (1), the Agency states that Complainant failed to provide any evidence to
establish a prima facie case of age discrimination given that he failed to identify the selectee’s age
or how age was purportedly considered for the position. The Agency maintains that Complainant
provided no factual support to his claim that an unnamed manager said he was “older than dirt.”
The Agency also argues that Complainant did not provide evidence to support a prima facie case
of disability discrimination because he did not specify when his autoimmune disorder disability
was documented prior to his nonselection or that the identified officials knew about it. Further,
the Agency asserts that Complainant did not offer supportive evidence for his claim that the
Technical Program Support Manager only promoted or favored African-Americans. The Agency
discounts Complainant’s focus on the predominant numbers of African-Americans in his former
section, noting this does not prove that the managers discriminated against Complainant based on
his race. The Agency cites the selecting official’s statement that the selections in claims (1) and
(3) were based on the interview writeups and resumes.

With respect to claim (6), the Agency states that Complainant was assigned to be an alternate for
a GG-13 employee, but not the primary backup. The Agency points out that another GG-12
employee and a lower graded employee were also assigned as an anticipated alternate to a GG-13
employee. According to the Agency, the Supervisor started that she drafted these assignments in
order to ensure that the work was distributed equitably and to ensure that enough coverage existed
during the day in case anyone was absent.

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ANALYSIS AND FINDINGS

Initially, we find that the Agency properly dismissed claim (4) for failure to state a claim. The
Commission has consistently held that a remark or comment unaccompanied by concrete action is
not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995).

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). He must generally 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). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in
protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he
was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination under
each of the alleged bases with regard to his nonselection in claims (1) and (3). With regard to
Complainant’s claim of disability discrimination, Complainant stated that he suffered from
arthritis, an autoimmune disorder and neuropathy, and that he was limited in walking long
distances, climbing stairs, standing and lifting more than twenty pounds. We shall assume
arguendo without finding so that Complainant is an individual with a disability. The Agency noted
that the selectee had current working knowledge of all areas of the Joint Distribution System and
was able to articulate the purpose of the Joint Distribution System and each component, and he
provided examples of his performance when creating, modifying, or suspending accounts The
selecting official explained that she chose the selectee based on his resume and interview write-
up. According to the selecting official, Complainant demonstrated very good skills as a Technical
Information Specialist, but that he had not worked in all areas of the Joint Distribution System
such as the Statement Intelligent Interest and the Compartmented Address Book. We find that the
Agency has articulated legitimate, nondiscriminatory reasons for its selection decision in claim
(1).

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With respect to claim (3), the Technical Program Support Manager stated that he did not
recommend Complainant for the Program Manager position because Complainant was vague in
response to several interview questions. The Technical Program Support Manager asserted that
the position was highly technical in nature and the selectee was the most qualified candidate
because he was currently a Program Manager and he discussed collaborating with a number of
personnel and databases, programming and other technical issues. The selecting official explained
that the selectee demonstrated superior abilities, including with databases, programming,
experience as an Acquisition Program Manager, and experience as a Business Process Analyst.
Additionally, the selecting official noted that the selectee served as a special assistant to the Deputy
Acquisition Executive and as a Contract Officer Representative, demonstrating his ability to
communicate and manage programs at all levels. We find that the Agency has presented
legitimate, nondiscriminatory reasons for its selection decision in claim (3).

In terms of claim (1), Complainant argues that he was disadvantaged by not being afforded the
opportunity to serve in the detail assignment that the selectee worked in prior to his selection for
the Technical Information Specialist position. Complainant claims that the Agency violated its
policy in the awarding of the detail. Complainant also maintains that he was more qualified than
the selectee based on his years of experience, performance ratings, and awards. Upon review of
the record, we discern little support for Complainant’s contentions. The record indicates that
Complainant was notified of the detail opportunity but unlike the selectee, he did not express
interest in serving in the detail. The policy that Complainant claims was violated did not exist at
the time of the detail. Complainant has not shown that his qualifications were so clearly superior
to the selectee so as to infer that discriminatory motivation was involved. In particular,
Complainant lacked the extensive background that the selectee had as to various facets of the Joint
Distribution System. We find that Complainant has not established that the Agency’s reasons for
his nonselection were pretext intended to hide discriminatory motivation.

As for claim (3), Complainant contends that the Technical Program Support Manager favored
African-American candidates and that management learned of the instant complaint shortly before
this selection occurred. The record reveals that the selectee was already working as a Program
Manager and he had a much better interview than Complainant. Complainant has not presented
persuasive evidence that the Technical Program Support Manager favored African-American
candidates over Caucasian candidates. We note that one of the two candidates recommended by
the Technical Program Support Manager is Caucasian. We discern no evidence of retaliatory
motivation in this selection. It is clear based on his Program Manager experience and his interview
that the selectee was a more qualified candidate than Complainant. Thus, we find that no
discrimination occurred as to claim (3).

With regard to claim (6), Complainant contends that a GG-12 employee should not be assigned as
an anticipated alternate for a GG-13 employee. Complainant points out that the assignment was
issued a few months after management learned of the instant complaint. However, Complainant
was not the only GG-12 employee assigned in that role and in fact an employee below the GG-12
level was given the same backup assignment for a GG-13 employee.
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The Agency explained that there were significantly more GG-12 employees than GG-13
employees and that the assignment of Complainant was made to ensure equitable distribution of
duties and coverage of the position, and it was believed Complainant was capable of performing
that level of work. We discern no persuasive evidence of retaliatory intent as to this claim.

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.
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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 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 26, 2018
Date