[Redacted], James T., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020000304 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James T.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2020000304 Agency No. NGAE-14-003 DECISION On October 15, 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 5, 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., 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract Specialist, IA-1102-04, at the Agency’s Office of Contract Services in Springfield, Virginia. On March 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Jewish), disability, age, and reprisal for prior protected EEO activity (request for information covered under the Freedom of Information Act and Privacy Act) when, on September 6, 2013, he was not interviewed or selected for the position of Contract Specialist, Pay Band 5, AON 20130968. 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. 2020000304 2 The Agency dismissed Complainant’s alleged basis of reprisal pursuant to 29 C.F.R. § 1614.107(a)(1), finding that he failed to allege an adverse action that was taken against him based on prohibited protected activity that would be covered by applicable statutes. It also dismissed Complainant’s alleged basis of disability, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, noting that Complainant refused to disclose the nature of his disability to the EEO Counselor.2 The Agency investigated the claims and, after receiving the report of investigation (ROI), Complainant requested a final agency decision (FAD). The Agency issued its FAD on November 21, 2014, finding Complainant failed to establish his claim. Complainant appealed to the Commission and, on April 4, 2017, the Commission vacated the FAD and remanded the matter to the Agency. The Agency issued another FAD which the Commission vacated on June 25, 2019. The Commission remanded the matter for a supplemental investigation and a new FAD. The Agency investigations produced the following pertinent facts. Regarding his alleged basis of reprisal, Complainant attested that he filed between 50 and 100 EEO complaints between 1979 and 2006, but the instant case was the first filed against the Agency. Complainant alleged that the responsible management officials (RMOs) were aware of his prior EEO activity during the selection process for the position at issue and believes the Agency did not select him because of it. He also alleged the RMOs held negative opinions of him and made sure he would not be interviewed. Regarding his alleged basis of disability, Complainant refused to disclose the nature of his disability and attested that he did not believe anyone at the Agency had knowledge of his disability. However, he attested that he still believed his disability may have been a factor in that Agency employees may have perceived that his behavior was driven by a disability. The Group Chief, Division Chief and two Supervisory Contract Specialists (Supervisor1 and Supervisor2), who were members of the selection panel, as well as the Director of Contracts, who was the approving official, attested that they did not recall knowing of Complainant’s prior EEO activity or disability, prior to learning of the instant complaint. Complainant attested that he believed the Agency discriminated against him by not interviewing and not selecting him for the position at issue. Complainant attested that he believed that he should have been interviewed and selected for the position because he had more experience, training, and knowledge than anyone inside or outside of government service. He asserted that he was the oldest applicant, although he acknowledged not knowing any of the other candidates or seeing their application materials. He generally asserted that he did not believe it was possible that there was a better candidate in light of his experience, education, training, and certifications. 2 The Agency indicated that the disability and reprisal claims would not be investigated, but the reports of investigation include questioning as to these bases. 2020000304 3 Complainant attested that he believed the Agency RMOs scored him unfairly and inaccurately in the selection process for the position at issue. He acknowledged that he had no proof or witnesses to his allegation that he was discriminated against based on his age, religion, sex, disability, or EEO activity. However, he asserted that he believed Agency leadership prefers younger employees and leaders and has a history of placing older employees in dead-end positions and not promoting them. He asserted that he assumed that no one else applied who had his religious characteristics and that he was viewed as uncooperative when he refused to do something based on his religion. He attested that he alleged sex as a basis so that he would not miss any allegations, as he believed that most selectees were women with military experience. The Group Chief attested that the referral certificate for the position at issue contained no information about each applicant’s age, religion, sex, disabilities, or EEO activity. He explained that each member of the selection panel rated and ranked the applicants’ resumes and, if two or more panel members were to rate an applicant more than one point apart, the panel convened to discuss their ratings. He explained that, after the resume scores were consolidated and averaged, the panel met to identify a logical break point in the overall numeric rankings, to decide who would be interviewed. The Group Chief explained that they decided to interview 7 of the 16 referred candidates, with the breakpoint for interviews being a score of 7 or higher. He attested that all four panel members independently rated Complainant’s resume as a “5.” He attested that the eventual selectee received an overall score of 9, which was the highest of the applicants. The Group Chief attested that Complainant’s rating reflected the fact that he had very limited or no supervisory experience in an operational contracting role. The Group Chief attested that, in the one operational position where Complainant appeared to have a leadership role, he was a Team Lead, which is typically an informal, quasi-supervisory position and, to the extent Complainant had any supervisory experience, it was at the first-line level. He attested that his biggest concern was his apparent lack of supervisory experience. He attested that, by contrast, the selectee had supervised larger teams and at the division level. He also attested that Complainant did not have the same depth or breadth of experience as other candidates. He attested that Complainant was a good solid performer but not necessarily outstanding. He attested that, regarding Complainant’s 30 years’ experience, that the person with the most on- the-ground working experience does not necessarily make the best manager. The Group Chief attested that the panel conducted interviews prior to selection, and they interviewed 7 candidates - those having an average score of 7 or above on their resumes. He attested that the panel felt they were the strongest candidates. He attested that Complainant did not get an interview because he had an average score of 5. He attested that the panel recommended the selectee, who had an average score of 9, which was the highest, and they recommended an alternate, who was 1 of 3 candidates who received an average score of 8. Their recommendations went to the Director of Contracts. 2020000304 4 The Division Chief attested that Complainant was in the middle portion of her ranking list, with a resume score of 5. She attested that Complainant lacked broad experience across the Agency’s contracting organization and the position at issue was one of the most senior within the office of contracts. She explained that Complainant had a lot of experience, duties, and assignments outside the normal buying realm, but she was looking for someone with significant breadth and depth of contract experience, particularly within multiple buying divisions of the Agency. She attested that there was a natural cut point in the average scores at 7, as there was clearly a group toward the top and a group at the bottom. She attested that Complainant was in the lower group. She attested that they decided to interview the top 8 candidates because there were so many candidates and there was a natural break in qualifications from the scoring. She attested that after the interviews, the panel ranked the final candidates, combining resume and interview, and the selectee was the panel’s top candidate. The Division Chief explained that her assessment of the selectee was that she had supervisor contract experience across four different buying divisions within the Agency’s contracts organization, with 13 years’ experience in those divisions. She attested that the selectee was currently serving in the Deputy role and essentially was already performing Band 05 work. She attested that the selectee had source selection experience and a lot of depth and breadth in working various contracts, whereas Complainant had a lot of experience outside of the Agency and not a lot of experience working in buying divisions at the Agency. She explained that the position was one of the senior positions within the contracting organization and they needed someone who had a good understanding of various customers across the Agency and their requirements. Supervisor1 attested that she also rated Complainant’s resume a 5. She attested that his resume demonstrated strong contracting knowledge, but his resume was weakest with respect to demonstrated leadership experience, leading medium to large teams. She attested that, although he had some supervisory experience, to her knowledge, he only supervised one person at a time and, most recently, it was not in contracting. She attested that his weakest area was leadership and strategic involvement, as he had no experience leading medium or large teams. She attested that strategic thinking/agility and managing multiple people were not clear on his resume. She attested that he did not have the experience of setting up a larger operation and implementing it. She attested that he had not managed across organizational lines and had not been involved in resolving or implementing strategic visions. She attested that she gave the selectee a 9, noting that she had been in a leadership position at least as far back as 2002-2003 when she was the Deputy of one of the contracting divisions. She attested that, in that role, the selectee had about 10 direct subordinates and shared responsibility for about 20. She attested that the selectee has been in supervisory roles ever since then, in different divisions and levels. Supervisor2 attested that she could not recall the details or her rating and ranking the resumes. However, she attested that Complainant’s qualifications were not at the same level as those who were interviewed, noting he had never been in an Acting Deputy Division Chief position and never led a large team. 2020000304 5 The Director of Contracts attested that, as the approving official, she received a selection package that shows everyone who applied, who was on the selection panel, and a summary of who was interviewed. Se attested that she checked to see whether the panel complied with the Agency’s rules on diversity, which the panel did, and verified that the panel conducted a resume review before deciding who they would interview. She attested that the panel applied criteria to establish a ranking, they ranked the candidates and selected the highly competitive resumes. She attested that she verified that they did not interview someone who was way down on the scoring scale. She attested that there was a line drawn based on the criteria and the most highly rated candidates were interviewed. She attested that, once she verified that the interviews were decided based on consistently applied criteria, she looked at how the panel scored all of the individuals who were interviewed, making sure that the panel selected someone from the most highly qualified candidates, that they used objective criteria, and that they applied the criteria consistently. She attested that she made sure that the job was given to the most qualified candidate and signed off on the selection. She attested that she did not see any red flags or need to provide course corrections to the subordinate Agency officials running the selection. A Human Resources Specialist (HR) attested that, as a recruiter, it was her role to receive all applications and resumes. She attested that she took the job announcement and read through the resumes to determine whether the candidates were qualified for the position; then, she made a recommendation to the hiring manager about whether the candidates were referred. She explained that the referral certificate was sent to the hiring manager and they make their pick from the list. She attested that, in this case, the panel received 16 referred applicants and they decided to interview the top 7 candidates, all of whom scored 7, 8, or 9. She attested that anyone who fell below the cutoff point, which was a score of 7, was not interviewed. She attested that, they interviewed just about 50% of the list and this was a good number of interviews. She attested that panel members or selecting officials do not receive any information regarding the applicants’ age, race, sex, disability, or prior EEO activity. The supplemental ROI indicates that management provided a list of the qualifications for the position. It also includes the Selection Profile Score form completed for each applicant, the certification package, including the certificate of eligibles, assignment opportunity certification, rating and ranking sheets, panel notes/individual rating forms, and panel composition accountability statement. It also includes the applicants’ resumes and demographic information for the applicants who were interviewed. 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). 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. The instant appeal followed. On appeal, Complainant argues that the Agency’s investigation was insufficient, and the Agency’s FAD lacked analysis. 2020000304 6 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”). 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 a 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Here, Complainant alleged that the Agency treated him disparately in not selecting him for an interview, and ultimately, a Pay Band 5 level Contract Specialist position. Even assuming arguendo that he established a prima facie case for each of the bases of discrimination alleged, we find the responsible Agency officials articulated legitimate, nondiscriminatory reasons for its actions. The officials directly involved in the selection process explained that Complainant did not advance to the interview stage because his resume showed little supervisory experience in an operational contracting role and lacked the depth or breadth of experience exhibited by other candidates. The witnesses explained that Complainant’s resume was also relatively lacking in demonstrating leadership and strategic involvement, as he had no experience leading medium or large teams. They also explained that Complainant lacked broad experience across the Agency’s contracting organization and the position at issue was one of the most senior positions within the organization. For these reasons, Complainant’s resume was not as competitive as other candidates and his resume was rated an average score of 5 out of 9. Only candidates whose resumes received an average score of 7 or higher advanced to the interview stage of the selection process. Because Complainant’s average score was in the bottom half of the average scores, he was not interviewed and, ultimately, was not selected. Although Complainant alleged that the Agency acted discriminately and/or in reprisal, we find the record does not establish by a preponderance of the evidence that the Agency acted on the basis of Complainant’s sex, religion, or disability or that there was a nexus between the Agency’s actions and his prior EEO activity. Therefore, we find he has failed to establish a claim of disparate treatment. 2020000304 7 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. 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. 2020000304 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 16, 2021 Date