[Redacted], Felix R., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Aug 18, 2021

Appeal No. 2020000535 (E.E.O.C. Aug. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felix R.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army (National Guard Bureau), Agency. Appeal No. 2020000535 Hearing No. 520-2017-00284X Agency No. T-2017-017-NY-A-AGLO DECISION On October 25, 2019, 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 September 10, 2019, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency’s Army National Guard Unit in Latham, New York. On February 17, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Jewish), age, and reprisal for prior protected EEO activity when he applied for the following positions: (1) Program Analyst position (Vacancy ID 1693473), (2) Contract Specialist position (Vacancy ID 1684128), and (3) Contract Specialist position (Vacancy ID 1786814). 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. 2020000535 2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts. Complainant’s Testimony Regarding his alleged basis of reprisal, Complainant attested that his prior complaints were against various Department of Defense agencies, including Army, Navy, DCMA, NGA, and NSA and he believed the selecting officials were aware of these complaints, as they are on the internet. He attested that he believed the Agency did not want to hire someone over the age of 70 who was previously employed at a higher grade. Complainant attested that he had over 35 years’ experience in Department of Defense acquisitions, six Defense Acquisition Workforce Improvement Act (DAWIA) certifications, industry certificates, thousands of hours of related training, superior performance appraisals, numerous awards, contracting warrants, job series 1102 supervisory and lead experience at the GS-15 level. Complainant attested that he received interviews for each of the positions at issue, two were on the telephone and one was in person. He attested that he wore religious clothing to the in-person interview, which appeared to surprise and make the panel uncomfortable. He attested that, at the end of the interview, he did not shake the female interviewer’s hand for religious reasons, but when she appeared offended, he shook her hand. Complainant indicated that, on or about November 10, 2016, he became aware that he was not selected for the positions at issue. Management’s Testimony: Program Analyst position The Selecting Official for this position (SO1) attested that he selected the selectee (Selectee1) because she had the best resume, the best responses to the questions asked, the best compiled score by the panel members, and a Master of Business Administration (MBA) degree. A member of the interview panel (Panel1) attested that he recommended Selectee1 for the position at issue. He explained that he was one of three panel members who discussed each candidate after the interviews and ranked them based on their responses. He attested that Selectee1 was their top-ranked candidate. He attested that prior financial experience with a focus on Army Logistics and Military Standard Requisitioning and Issue Procedures (MILSTRIP), and the responses to the interview questions were the factors used in making a determination of the best candidate. He attested that Complainant ranked fourth of five candidates and was not chosen because he was not the best candidate. 2020000535 3 Another panel member (Panel2) attested that he was one of three panel members and was responsible for asking 7 logistic budget-based questions. He attested that, using the Standard Operating Procedures Interview and Evaluation form, each candidate was asked the same 18 questions and each response was graded on a scale of 1 to 5, with the total points being recorded at the end of each interview. He attested that Selectee1 unanimously scored the highest points with each panel member. He attested that the factors used in making the determination were knowledge in logistical processes, fiscal law, funds management, government systems, and MILSTRAP. He attested that Complainant ranked fourth of five candidates. Management’s Testimony: Contracting Specialist positions The former Deputy U.S. Property and Fiscal Office (AO) attested that he was the approving official for interview board’s recommendations for the positions. He attested that there were three board members for each position. He attested that each candidate was asked the same questions and each interview board member ranked the candidates’ responses from one to five, with five being the highest. He attested that the board members discussed the candidates’ answers to ensure each member captured the full response for each of the questions and then tallied their scores. He attested that the candidate with the highest score was selected for each position. He attested that he selected the selectees (Selectee2 and Selectee3) based on the results received from the interview board and the candidate ranked number one for each of the positions was selected. AO attested that the board members for the first position were a Contract Specialist (Panel3), Supervisory Contract Specialist (Panel4), and a Contracting Officer (Panel5) and the panel members for the second position were Panel3, Panel4, and a Contract Specialist (Panel6). Panel3 attested the selectees were selected based on their individual responses to the interview questions and expertise in performing the job. Panel4 attested that Complainant had a face-to-face interview for the first position and a phone interview for the second. He attested that he perceived Complainant’s religion to be Jewish because he wore a yarmulke to the interview. Panel4 attested that each candidate was asked the same questions and each panel member ranked the candidates’ responses from one to five, with five being the highest. He attested that each board member’s scores were tallied for each candidate, the scores were totaled, and the candidate with the highest score was selected. He attested that, with respect to the position with the telephone interview, Complainant ranked fourth out of six candidates, and with respect to the position with the in-person interview, he ranked second of five candidates. Panel4 attested that, although Complainant did well during the interviews, he was unfamiliar with the software programs used to manage contracts and the Government Purchase Card (GPC) program. He attested that, by contrast, the selectees worked daily with the software programs and were knowledgeable about the GPC program, in addition to excelling in their interview responses. 2020000535 4 Panel5 attested that each panel member ranked each candidate individually from one to five, with five being the highest. He attested that board members discussed the candidates’ answers to ensure each member had a clear understanding of each response to the questions and each board member tallied their score for each candidate, the scores were totaled and the candidate with the highest score was recommended. Panel6 attested that he was advised to take notes during the interviews and rank order the candidates after the interview, without discussion with the other board members. He attested that there was discussion after the board members added their own scores about the board members having generally the same outcomes for each candidate. He attested that Complainant placed second of five candidates. He attested that the factors used in ranking the candidates were general contract knowledge questions testing each candidate’s knowledge and application of the Federal Acquisition Regulation and previous contract experience with the federal government. Other Evidence The record includes the selection packages for each position. It includes a statement from Panel1 that he was unable to find his scoring sheets, but recommended Selectee1 as his top candidate. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, 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. The instant appeal followed. On appeal, Complainant generally argues that the Agency failed to adequately or appropriately consider his qualifications in scoring and ranking him. Complainant also argues that the record was deficient, noting that the report of investigation that he received was redacted, and the investigation was insufficient. Complainant asks for a default judgment, a new hearing, or bad faith sanctions against the Agency. The Agency has not submitted a brief or statement in response. 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 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”). 2020000535 5 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Assuming arguendo that Complainant established a prima facie case of discrimination and/or retaliation, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selection for each of the positions at issue. Much of Complainant’s argument is that he retired after holding various positions in federal service over 35 years, at grades as high as GS-15, and he should, therefore, be more competitive than other applicants. We also recognize that, when the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications were plainly superior to those of the selectee. Hung P. v. Dep't of Veteran Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). That said, the Agency explained its selection process and we note, at the outset, that Complainant was selected for the Certificate of Eligibles and given an interview for each of the positions at issue. However, the Agency explained that, with respect to the Program Analyst position, the factors used in ranking the candidates were knowledge in financial areas, logistical processes, fiscal law, funds management, government systems, and MILSTRAP. A review of Complainant’s interview sheets generally indicates that he was rated highly for his experience with government contracting; he was rated average or below average for many of his answers regarding terms and systems; his specific qualifications for this position was rated in the average range; and he received several below average scores for responses to “situational” and other questions. 2020000535 6 The interview sheets for Selectee1 indicate that, in comparison to Complainant, she was rated lower on experience, particularly in contracting, but overall, her scores were higher in other areas. With respect to the Contract Specialist positions, the Agency explained that, although Complainant did well during the interviews, he was unfamiliar with the software programs used to manage contracts and the GPC program and, by contrast, the selectees worked daily with the software programs and were knowledgeable about the GPC program, in addition to excelling in their interview responses. The interview sheets for Complainant for the Contract Specialist position (Vacancy ID 1684128) indicate that he received very high ratings for his background and knowledge of federal contracting; he received average and lower scores on specific areas of experience or knowledge, including software programs; and he received average and lower scores on some situational questions. By contrast, Selectee2 received lower ratings than Complainant for background and knowledge of federal contracting, but she received higher scores on specific areas of experience or knowledge, including software programs, and situational questions. The interview sheets for Complainant for the Contract Specialist position (Vacancy ID 871786814) indicate that he was rated highly for his background and experience and, overall, he was rated in the average to high range in every area. However, Selectee3 was also rated very highly in experience and was rated higher than Complainant in other areas. For all of these reasons, we find Complainant has not established that he was a plainly superior candidate to any of the selectees. Although Complainant has alleged the Agency acted discriminately or in reprisal, the record does not establish by a preponderance of the evidence that Complainant was not selected because of his sex, religion, age, and/or prior EEO activity. While his lengthy resume in federal service certainly made him competitive for the positions at issue, the candidates’ length of experience was not the only consideration. Therefore, we find that he has failed to establish a claim of disparate treatment. CONCLUSION 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. 2020000535 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020000535 8 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 August 18, 2021 Date