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

Equal Employment Opportunity Commission

Oct 25, 2018

0120172188 (E.E.O.C. Oct. 25, 2018)

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

Roderick P.,1
Complainant,

v.

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

Appeal No. 0120172188

Agency No. DLAF-16-0159

DECISION

On June 7, 2017, 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
May 3, 2017, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Document
Automation Procurement Specialist, GS-0301-09, at the Agency’s Document Services facility.

The Agency advertised the position of Document Automation Procurement Specialist, GS-0301-
11/12, under Job Announcement Number DLAJ6-16-1632353-MP between February 19, 2016,
and February 28, 2016. Human Resources forwarded a Certificate of Eligibles containing the
resumes of applicants deemed to be qualified to the Selecting Official, the Deputy Director,
Document Services, Washington Office Group. The Certificate contained seven applicants,
including Complainant and the Selectee, a Document Automation Specialist, GS-0001-09.

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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The Selecting Official convened an interview panel consisting of himself, the Document
Services Business Manager (Panel Member 1); and an Information Technology Specialist (Panel
Member 2). The panel reviewed the resumes of the candidates and subsequently interviewed all
seven applicants by telephone in March 2016. Applicants were asked a series of nine questions
in the areas of: customer service, oral communication, accountability, audit readiness, financial
management, decisiveness, integrity and honesty, knowledge and experience with the General
Printing Office (GPO) and its operations, and interpersonal skills. Applicants were scored on a
scale of one to five for each question: expert (5), advanced (4), intermediate (3), basic (2), and
awareness (1).

Following the interviews, the panel discussed the candidates and unanimously decided that the
Selectee was the best qualified. Before making a final decision, the Selecting Official conducted
another review of the resumes of the top applicants and their references, which included the
Selectee and Complainant. The Selecting Official chose the Selectee for the position of
Document Automation Procurement Specialist, GS-0301-11.

On April 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (67) when:

He was not selected for the position of Document Automation Procurement Specialist,
GS-0301-11/12 advertised under JOA DLAJ6-16-1632353-MP.

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.

In its final decision, assuming Complainant established a prima facie case of disparate treatment,
the Agency proceeded to examine the rationale for its actions. The Selecting Official stated he
was looking for a candidate who had: knowledge of the Document Systems printing management
programs and procedures; an ability to perform analytical studies, analyze problems, and
recommend solutions of the procurement services; and the ability to communicate in writing and
orally. The Selecting Official stated he chose the Selectee because he was the best qualified and
noted the interview panel also believed the Selectee was the best choice.

The Selecting official stated the Selectee was chosen based on his resume, interview, and
references. He stated the Selectee gave a good interview, had excellent customer service skills,
and was able to gather client specifications and translate them into a working document. The
Selecting Official explained he had first-hand knowledge of the Selectee’s strong work ethic,
printing background, excellent customer service, and ability to translate, document, and handle a
variety of print requirements for a varied background. The Selecting Official stated although the
Selectee did not have GPO experience, he had experience in printing, gathering client
specifications and requirements, and translating that into a working document and final results.
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The Agency noted Complainant claimed he was more qualified than the Selectee. Complainant
stated he worked in the printing field for approximately 45 years, including 10 years of
experience as a Document Automation Procurement Specialist. The Agency noted that
Complainant stated the Selectee was not as qualified for the position, because he lacked
experience and knowledge with the GPO and its operations, which was a key component of the
position description. He stated the Selectee worked as a flex press operator and had no
experience in the procurement process as required for commercial print reproduction of print
services and would need to be trained in the major duties of the position.

The Agency noted Complainant and the Selectee were very similarly qualified for the position of
Document Automation Procurement Specialist. The Agency noted the resumes submitted by
Complainant and the Selectee show they both had extensive experience and knowledge in the
automated printing field and possessed the requisite skills for the position. Complainant’s
experience was primarily in the federal sector, whereas the Selectee’s experience was primarily
in the private sector. The interview panel found both applicants did well in their interviews.

The Agency noted the interview panel rated Complainant as being advanced or intermediate on
all of the questions. The exception being, one panelist rated him as excellent on decisiveness and
excellent on interpersonal skills. In comparison, the panel rated the Selectee as being excellent,
advanced, or intermediate on almost all the questions. The Selectee was judged to be excellent
on customer service, interpersonal skills, accountability, financial management, and
decisiveness. The Selectee was rated by two panel members as basic on knowledge and
experience with the GPO and its operations.

The Agency noted as part of his rebuttal, Complainant stated that the Selectee did not have GPO
experience and knowledge. The Agency noted the Job Announcement showed the duties of the
position included working with the GPO. The Agency noted the record confirmed the Selectee
lacked knowledge and experience with the GOP and its operations in comparison to
Complainant. Two members of the interview panel confirmed this. The Agency stated
Complainant established he was superior to the Selectee as it pertained to knowledge and
experience with the GOP and its operations.

The Agency noted the interview panel considered experience in nine different knowledge/skill
areas, including knowledge and experience with the GOP and its operations. However, the
Agency stated GPO experience was not an exclusive factor in their determination as to which
candidate was the most qualified. The Agency noted this is supported by the interview panel,
who believed the Selectee overall was stronger in multiple areas. The Agency determined
Complainant did not meet the burden of showing he was demonstrably superior as to most of the
evaluation criteria in comparison to the Selectee.

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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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, she 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to Complainant to demonstrate by a preponderance of the evidence that the Agency's
reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S.
502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).

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 Service
Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Both the interview panel and the Selecting Official determined the Selectee was the best
qualified for the position. While the Selecting Official and the Panel Members acknowledged
that the Selectee did not have the specific GPO experience that Complainant had, this was just
one of several factors in the hiring criteria and not a determinative factor.
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In a nonselection case, pretext may be demonstrated in a number of ways, including a showing
that Complainant's qualifications are “plainly” superior to those of the selectee's. Bauer v.
Bailar, 647 F.2d 1037 (10th Cir. 1981); Williams v. Department of Education, EEOC Request
No. 05970561; Jenkins v. Department of the Interior, EEOC Request No. 05940284 (March 3,
1995). While Complainant notes that he had more overall years of experience than the Selectee,
the Commission has previously held that greater years of experience do not necessarily make an
individual more qualified for a particular position. Upon review, we find Complainant failed to
show by a preponderance of evidence that the Agency’s actions were based on discriminatory
animus.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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

October 25, 2018
Date