Maximo S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Apr 23, 2019

0120180826 (E.E.O.C. Apr. 23, 2019)

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

Maximo S.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.

Appeal No. 0120180826

Hearing No. 532-2015-00028X

Agency No. DFAS000202014

DECISION

On December 29, 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
November 28, 2017, final order 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Analyst,
0343, GS-12, at the Agency’s Payroll Services Directorate facility in Cleveland, Ohio.

On March 3, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of race (White) when, on or about November 19, 2013, he was not
selected for the position of Financial Specialist, 0501, GS-13, posted under vacancy number CL-
972695-14.

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.
0120180826

2
The Agency accepted the complaint and conducted an investigation, which revealed the
following pertinent facts.

Complainant alleged that the Agency selected a less qualified African-American man for the
position at issue (System Manager), using extraordinary preferential treatment in the hiring
process.

Complainant asserted the position was advertised as a GS-13 but should have been a GS-14,
based on numerous things, including its size, its budget, and the fact that similar management
positions were posted at the GS-14 level. He alleged the position was listed as a GS-13 to allow
the selectee (Selectee) to apply for the position. Otherwise, due to time in grade requirements,
he would not have been qualified. Complainant was familiar with his own work and that of
Selectee. He noted his extensive experience in a number of areas including financial
management, accounting, and budgeting; his bachelor’s and master’s degree; and his experience
throughout the Agency in accounting and budgeting, including having served as the acting
assistant manager for Defense Military Pay Office (DMO) for just under 10 months in 2011. He
claimed he should have been able to bid for the position at the GS-14 level and he would have
been the best qualified or certainly near the top. However, at the GS-13 level, he said he was still
more qualified than Selectee. He was a GS-13 accountant for just under 2 years. He further
alleged the Selectee’s resume contained false information. For example, it indicated he served as
an “acting system manager” and performed tasks as a contractor that, by law, he could not do as
such.

The Division Chief indicated he was Complainant’s second level supervisor and the selection
official for the System Manager position. The position was announced, it was open for a period,
employees who wanted to apply did so through USA Jobs and were evaluated by HR.
Management received a list of employees that had applied for the job. The review team reviewed
them and identified the top candidates and interviews were conducted with those top candidates.
The review team indicated that the top 3 candidates seemed to be all very well-qualified and he
made the selection, which was forwarded to the Deputy Director, who provided the selection to
HR. The vacancy announcement was developed by HR and sent to them for approval. The
System Manager position requires a wide range of experience and education and is a growth
area.

The Division Chief attested that Selectee was among the top candidates. Complainant was not.
Selectee was more qualified based on his experience, which included many years of military
experience, experience with the system and how it operates and coordinates with the core pay
system. He said Complainant has a very good background, including an excellent educational
background, but he does not have the system knowledge and experience on the throughput of the
system and environment that the selectee had. Selectee served in an acting system manager role
when the previous system manager retired, pending the selection of a replacement.

0120180826

3
The Deputy Director attested that, while she is usually the selection official, she was on leave
when this selection was made. However, she indicated there are System Managers at the GS-12,
13, and 14 levels. This position was created during a reorganization at the GS-13 level.

The Division Director attested that she served on the selection panel. In reviewing the resumes,
each member of the panel ranked and/or scored the resumes, then they took the scores from each
category and combined them to get an overall score for each candidate, which was used to
determine which candidates were interviewed. Complainant was not among the top scoring
candidates. His problem-solving and leadership skills were not evident on his resume.

A System Manager attested that he was part of the selection panel. They were given evaluation
criteria with ratings for the different categories to use in ranking the candidates. There were 12
rankings and Complainant was ranked 5 of 12. He was not in the top 3 selected for an interview.
Complainant’s resume did not show any real leadership or include technical discussion about
systems. Selectee had a strong technical background and his resume discussed quite a bit of his
technical aspects and system manager experience. Overall, Selectee had more experience in
overall systems management and leadership.

The Human Resources Specialist attested that creating the vacancy announcement is a
collaborative process with management. Management determines the grade level, such as GS-13
or 14.

We note that Selectee’s resume does not indicate any the completion of any college degrees. It
includes a list of training seminars and courses and the following professional certifications:
Certified Computing Professional, Microsoft Certified System Engineer, and Certified Security+.
It includes numerous awards and 6 military campaign service medals.

Complainant’s resume indicates he holds an undergraduate degree in management and labor
relations and accounting and a master’s degree in business administration (MBA).

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.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision by summary judgment in favor of the Agency
on October 10, 2017. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The instant appeal followed.

0120180826

4

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates his allegations that the Agency gave Selectee preferential
treatment in the hiring process and subjected Complainant to “reverse discrimination” based on
race. The allocation of points was inappropriate. Selectee was awarded 208 points through
negligence or favor and Complainant was only awarded 150 points through negligence or
disfavor. The Agency made no attempt to verify the accuracy of the resumes. The AJ failed to
investigate Selectee’s misstatements and false claims of job positions and titles. Selectee
submitted a false application, which guaranteed high ratings. Selectee lacked the training to
perform this job, as his education level was 8th grade plus a GED certificate. The ranking
committee, including the selecting official, allowed fake resumes to proceed through the hiring
process. The selecting official knew the selectee and would have known his resume was false.

Complainant alleges Selectee was given more points for allegedly performing the same work as
he performed. He generally argues that, in most areas, Selectee’s ratings were too high and his
were too low, taking issue with Selectee’s experience, training, and/or education. However, he
finds that Selectee should have received 10 points for certifications and he should receive 0
points for certifications. Overall, he should have scored higher than the selectee. He alleges that
the Agency had chosen Selectee prior to the selection process.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if
it has the potential to affect the outcome of the case. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is not appropriate.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law.
0120180826

5
While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed
to point with any specificity to particular evidence in the investigative file or other evidence of
record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Complainant has alleged that the Agency treated him disparately when he was not selected for
the System Manager position. 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. See McDonnell
Douglas, 411 U.S. at 802; 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. See 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. See St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency’s management explained that while Complainant has a very good
background, including an excellent educational background, he did not have enough system
knowledge and experience to be competitive for the position. He also was not competitive with
respect to problem-solving and leadership experience. Therefore, he did not rank among the top
3 candidates for the position who were selected for an interview. We note that Complainant has
pointed out that his highest degree of educational attainment is a master’s degree in business
administration, whereas Selectee went to school through the 8th grade, has a GED, and does not
have a college degree. However, Complainant acknowledged that Selectee has applicable
technical certifications that he lacked. Additionally, the Agency explained that the System
Manager position required a wide range of education and experience and was a growth position.

In the absence of evidence of a discriminatory motivation, the Agency generally has discretion to
choose among equally qualified candidates. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. at 259. In addition, the Agency has the discretion to choose among applicants who have
different but equally desirable qualifications. See Canhan v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981). Complainant has not produced sufficient evidence to dispute Selectee’s
qualifications or establish that he has superior qualifications. See Ash v. Tyson Foods, Inc., 546
U.S. 454 (2006). Therefore, we find that Complainant has not established by a preponderance of
the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a
pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with
respect to his claim.
0120180826

6

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 order.

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.
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
0120180826

7
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 23, 2019
Date