Dallas L.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Apr 12, 2017

0120150772 (E.E.O.C. Apr. 12, 2017)

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

Dallas L.,1
Complainant,

v.

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

Appeal No. 0120150772

Agency No. PH-13-0065

DECISION

The Commission accepts Complainant’s appeal2 from the Agency’s August 18, 2014, final
Agency decision (FAD) 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the FAD.

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 Complainant filed his appeal on December 10, 2014. Therein, Complainant claims that the
Agency sent the FAD to his incorrect address. The record reveals that the Agency mailed the
FAD to Complainant’s address on record on August 19, 2014. The mail package was returned
as undeliverable. The Agency attempted to contact Complainant via email to arrange delivery;
however, it was unable to contact Complainant. The Agency subsequently sent the FAD to an
alternative address on September 17, 2014, and it was received and signed for on September
20, 2014. It is unclear who received the package; however, Complainant denies that he
received the FAD. Complainant later contacted the Agency requesting an electronic copy of
the FAD via email. On December 3, 2014, the Agency provided Complainant an electronic
copy of the FAD. Based on the specific circumstances present, the Commission accepts
Complainant’s appeal as timely.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant was as an applicant for
employment with the Agency. From February 2013 through October 2013, Complainant
applied for at least 37 different positions with the Agency at numerous locations around the
country. Complainant was not selected for any of the positions for which he applied.
Complainant claims that he was more qualified than those who were selected for the positions
at issue. Complainant argues that he was discriminated and retaliated against by the Agency,
its selection committees, and selection officials. Complainant claims that the Agency showed
favoritism in their selection decisions and that veterans and others were selected in violation of
Federal equal employment opportunity laws.

On July 24, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of race (Indian), national origin (India), religion (Hindu), age (55),
and in reprisal for prior protected EEO activity under Title VII when he was not selected for
16 positions.3 On September 4, 2013, Complainant amended his complaint to allege that he
was discriminated against on the bases of race, national origin, age, religion, and in reprisal
for prior protected EEO activity when he was not selected for 17 additional positions.
Complainant amended his complaint again on September 17, 2013, and October 23, 2013, to
allege that the Agency discriminated against him on the bases of race, national origin, age,
religion, and in reprisal for prior protected EEO activity when he was not selected for four
additional positions.

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 Equal
Employment Opportunity Commission 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 management officials articulated legitimate,
nondiscriminatory reasons for its actions. As to the Quality Assurance (QA) Engineer position
under Vacancy Announcement No. SWH813P7EHA905603831927 (VA-1), Complainant was
found qualified and referred for consideration on the Non-Traditional Certificate of Eligibles.
The selecting official for the position stated that he reviewed the qualifications of the
candidates and determined that four candidates separated themselves based on superior
education, manufacturing experience, and quality assurance experience. The selecting official
then forwarded the resumes of the 13 candidates to one of his first-line supervisors for review
and he identified the same four candidates as being the best qualified. Complainant was not
determined to be one of the four best-qualified candidates. Two of the candidates declined to

3 The Agency dismissed sixteen additional non-selection claims for untimely EEO Counselor
contact. Complainant raised no challenges to the dismissal of these claims; therefore, the
Commission will not address those claims in this decision.
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be interviewed, and the selecting official selected the selectee (Selectee 1) following interviews
with the remaining two best-qualified candidates.

With respect to the Contract Administrator or Contract Price/Cost Analyst announced under
Vacancy Announcement No. SWH812KSP7658687 (VA-2), the Supervisory Human Resources
Specialist affirmed that Complainant was not referred for consideration because he did not
meet the basic educational requirements for the position. She explained that the position
required a Bachelor’s degree from an accredited educational institution and at least 24 course
hours in any combination of accounting, business, finance, law, contracts, purchasing,
economics, industrial management, marketing, quantitative methods, or organization and
management. Complainant’s resume and application did not contain information which would
have made him eligible for the position.

Regarding the Contract Administrator position announced under Vacancy Announcement No.
SWH813P6392432829278 (VA-3), Complainant was not referred for consideration because he
failed to submit all of the required forms as specified in the vacancy announcement. As to the
General Engineer position announced under Vacancy Announcement No.
SWH813P6273832828597 (VA-4), the selecting official stated that Complainant was
determined to be qualified, but was not referred for an interview because his resume did not
attract the interview panel’s attention as being superior to those selected for an interview based
on the candidates’ educational background.

With respect to the QA Specialist position announced under Vacancy Announcement No.
SWH813KSP8862108 (VA-5), the Human Resources Specialist stated that Complainant was
not considered for the position because he was not listed as an applicant. Likewise,
Complainant was not listed as an applicant for the QA Specialist (Electronics) position
announced under Vacancy Announcement No. SWH813P6497904859155 (VA-6). With
regard to the Interdisciplinary Engineer position announced under Vacancy Announcement No.
SWH812P6EH744857823377 (VA-7) the selecting official stated that he appointed a three-
person panel to evaluate over 40 candidates for interviews. The panel screened out candidates
who did not meet the necessary experience requirements or possess Mechanical Engineering
degrees. The selecting official noted that Complainant’s resume was not referred to him for
consideration. The interview panel conducted interviews and recommended the top three
candidates with two candidates as alternates for selection. All five were offered tentative job
offers; however, only two accepted.

As to the QA Specialist position announced under Vacancy Announcement No.
SWH812P6EHA969547844796 (VA-8), Complainant was determined to be qualified and
interviewed for the position by the selecting official. The selecting official stated that she did
not select Complainant because of his behavior during the interview. The selecting official
asserted that interviews with candidates were scheduled to last 30 minutes; however, she was
only able to ask Complainant one question because he continued to talk even after she informed
him that she had other questions. The selecting official affirmed that after 45 minutes, she
interrupted Complainant and told him that he had exceeded the time allotted for his interview.
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The selecting official determined that Complainant could not follow a simple direction based
on his behavior during the interview. Further, Complainant focused on acquisition cost
savings when the position dealt with administering contracts after they had been issued. The
selecting official noted that the selectee had a massive quality background, was a current
Federal employee, and had private sector experience as well.

Regarding the QA Specialist position announced under Vacancy Announcement No.
SWH8139Y392267834328 (VA-9), the selecting official stated that the rating and interview
panel reviewed the applications of the 25 applicants and did not refer Complainant for further
consideration. The selecting official affirmed that Complainant was not referred for further
consideration because his resume and cover letter raised some red flags in that Complainant
stated that he would work for no salary and that he wanted to meet with top Agency officials
and save them billions of dollars. The selecting official further explained that because of the
bizarre nature of Complainant’s cover letter, he believed it was a prank. Additionally, the
selecting official stressed that there were other candidates whose applications matched up better
and they were referred for selection.

With respect to the QA Specialist position announced under Vacancy Announcement No.
SWH813EHA824496869011 (VA-10), the Human Resources Specialist stated that the selecting
officials chose the number of applicants they wanted to review and determined the cutoff score
based on objective criteria from the requirements of the position. The Human Resources
Specialist explained that the cutoff score was set at 98, and Complainant’s score was 97. As a
result, Complainant was not referred for further consideration. As to the QA Specialist
position announced under Vacancy Announcement No. SWH813P6EE393786865726 (VA-11)
and the QA Specialist (Deployable) position announced under Vacancy Announcement No.
SWH813P6EE528315869885D (VA-12), officials explained that Complainant was not listed as
an applicant for the positions.

Regarding the Contract Price/Cost Analyst position advertised under Vacancy Announcement
No. SWH813PH5070208868948 (VA-13), the Human Resources Specialist explained that
Complainant did not meet the basic education requirements for the position and a sufficient
number of qualified veterans were referred for consideration. As to the Contract Price/Cost
Analyst position announced under Vacancy Announcement No. SWH8139Y57820890417 (VA-
14), the record revealed that Complainant did not apply for the position at issue. Additionally,
as to the Contract Administrator position announced under Vacancy Announcement No.
SWH8139YEE377864829484D (VA-15), the record showed that no one was selected for the
position as the announcement was cancelled. Regarding the Contract Price/Cost Analyst
position announced under Vacancy Announcement No. SWH8139Y578214890681 (VA-16),
the Human Resources Specialist confirmed that Complainant applied after the application
deadline.

As to the Contract Administrator position announced under Vacancy Announcement No.
SWH812P7EHA658361 (VA-17), the Human Resources Specialist stated that Complainant was
found ineligible position because he only submitted a certificate of graduation, not a college
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transcript or other proof verifying his completion of the specific required courses. With
respect to the QA Engineer position announced under Vacancy Announcement No.
SWH812P6BHE797998 (VA-18), the Human Resources Specialist affirmed that Complainant
was not referred for consideration because his application did not demonstrate that he met any
of the specialized experience requirements. Ultimately, no selection was made for the
position. The Human Resources Specialist confirmed that this was the same reason he was not
referred for the QA Specialist position announced under Vacancy Announcement No.
SWH812P6BHE797776 (VA-19) and the Contract Price/Cost Analyst position announced
under SWH812P6MHE802606 (VA-20).

Regarding the Contract Administrator positions announced under Vacancy Announcement
Nos.; SWH813P6EE385054830348D (VA-21); SWH8139YEE377864830003D (VA-22);
SWH8139YEE377864830165D (VA-23) and SWH8139YEE377864830281D (VA-24), the
record showed that no referral lists were generated for VA-20, VA-21, VA-22, and VA-23,
and VA-24 was cancelled.

With respect to the QA Specialist position announced under Vacancy Announcement No.
SWH812P6EHA659875 (VA-25), the Human Resources Specialist explained that Complainant
was not referred for consideration because he did not meet the specialized experience
requirements for the position. As to the QA Specialist position announced under Vacancy
Announcement No. VAN SWJ913P6EHA837451 (VA-26), Agency records revealed that no
referral list was generated for the vacancy. Regarding the Contract Administrator position
announced under Vacancy Announcement No. SWH812P8EHA660085 (VA-27), Complainant
was not referred for consideration because his resume lacked sufficient information to evaluate
his experience against the minimum qualification requirements.

With regard to the QA Specialist position announced under Vacancy Announcement No.
SWH813P6EE392856832048D (VA-28), the Human Resources Specialist affirmed that the
position was a Delegated Examining Unit announcement and applicants with Veterans
Preference would block all applicants who did not have Veterans Preference. Complainant is
not a veteran and he was blocked by the veterans on the list. As to the Contract Price/Cost
Analyst position announced under Vacancy Announcement No. SWH813P6392839829046
(VA-29), the Human Resources Specialist declared that the announcement stated that “Foreign
education must be evaluated for U.S. equivalency in order to be considered for this position.
Please include this information in your resume.” Complainant was not referred for
consideration because despite those instructions, Complainant’s application did not include an
evaluation for his Bachelor’s degree transcripts from Sardar Patel University.

As to the QA Specialist position advertised under Vacancy Announcement No.
SWH812P6BHE797649 (VA-30), the selecting official affirmed that there were 80 to 90
applicants for three or four vacancies at the time. The selecting official stated that four
candidates (and one candidate who declined the position) were selected because they all had
experience with military weapons systems and military hardware. The selecting official added
that Complainant was not referred for selection because he had very little or no experience or
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contact with military weapons systems. The selecting official noted that weapons systems
experience was crucial to the position.

Regarding the Contract Administrator or Contract Price/Cost Analyst position announced
under Vacancy Announcement No. SWH812KSP7658687 (VA-31), the record showed that no
selection was made from the referral list. As to the QA Specialist position announced under
Vacancy Announcement No. SWH8139Y660247938772D (VA-32), the Human Resources
Specialist stated that that the position was a Delegated Examining Unit announcement and
applicants with Veterans Preference would block all applicants who did not have Veterans
Preference. Complainant is not a veteran and he was blocked by the veterans on the list.

With respect to the Contract Administrator position announced under Vacancy Announcement
No. SWH8139Y942115664488 (VA-33), the Human Resources Specialist explained that
Complainant was not referred for consideration because he did not meet the basic requirements
for the position which required at least 24 semester hours in any combination of accounting,
business finance law, contracts, purchasing, economics, industrial management, marketing,
quantities methods, or organization and management. As to the QA Specialist position
announced under Vacancy Announcement No. SWH813KS6644492939751R (VA-34), the
selecting official stated that that mission of the organization was to inspect aircraft and aviation
and/or air space experience was necessary for the position. The selecting official affirmed that
he did not select Complainant because he did not have any aircraft or airspace experience.

Regarding the Supervisory Contract Price/Cost Analyst positions announced under Vacancy
Announcement Nos. SWH813P8686828953044 (VA-35) and SWH813P6684293951813D
(VA-36), the Human Resources Specialist explained that Complainant was not referred because
the positions were Delegated Examining Unit announcements and applicants with Veterans
Preference blocked him from receiving further consideration. Finally, as to QA Specialist
position announced under Vacancy Announcement No. SWH813P6KS670118945019 (VA-37),
the selecting official stated that he made his selection decision based on the candidates’
experience and written information in their resumes only. The selecting official affirmed that
he selected the selectee because he was the best qualified based on his resume and was the only
candidate who had an actual QA Specialist as a reference. The selecting official stressed that
he did not select Complainant because he was not the best qualified candidate for the position.

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 or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he should have been selected for employment with the
Agency because he can save the U.S. taxpayers billions of dollars for years to come.
Complainant argues that he can outperform most employees at the Agency’s and at all Federal
Agencies’ Procurement and Vendor Management Divisions. Complainant claims that the
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Agency lied to him and cheated him regarding positions for which he applied. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially 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. Corp. 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. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that the Agency articulated
legitimate, nondiscriminatory reasons for not selecting Complainant for the positions at issue.
As discussed above, the Agency explained that Complainant was deemed ineligible for many of
the positions because he lacked the specialized experience or education required of the
position, failed to follow the directions specified in the vacancy announcements, failed to
properly apply, or failed to provide sufficient proof of his educational background.
Additionally, for several positions, Complainant was not referred for consideration because he
is a non-veteran and selections were made under announcements where veterans were required
by law to be selected before non-veterans. The record reveals that no selections were made
under several vacancy announcements and others were cancelled. Finally, for positions for
which he was considered for selection, the Agency explained that he was not the best qualified
candidate for the position. For example, the selecting official for VA-8 affirmed that
Complainant exceeded the interview allotment time answering only one question, which led her
to believe that he could not follow a simple direction. ROI, at 2874. Further, the selecting
official noted that Complainant’s response to the one question was not even related to the
position for which he was interviewing. Id. Similarly, the selecting official for VA-9 stated
that he had concerns and did not consider Complainant for selection after reviewing his cover
letter as Complainant stated therein that he would work for no salary and that he wanted to
meet with the “top people in [the Agency] and save them billions of dollars.” Id. at 2878.

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
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(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. at 256.

The Commission finds no persuasive evidence that Complainant’s protected classes were a
factor in any of the Agency’s actions. In the absence of evidence of unlawful discrimination,
the Commission will not second guess the Agency’s assessment of the candidates’
qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. The Commission
finds that the record lacks evidence that the Agency’s selection decisions or the selection
processes at issue were tainted by discriminatory or retaliatory animus. 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 discriminatory or retaliatory
animus was a factor in its actions. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that he was subjected to discrimination
or reprisal as alleged.

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 (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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
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C.F.R. § 1614.604. 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).

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 12, 2017
Date