Issac K.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120172297 (E.E.O.C. Dec. 14, 2018)

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

Issac K.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120172297

Agency No. ARRIA15OCT03776

DECISION

On June 19, 2017, Complainant filed an appeal from the May 9, 2017 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract Closeout
Specialist with the Chicago Lighthouse for People Who are Blind or Visually Impaired. That
organization performed contract work at the Agency’s Rock Island Arsenal facility in Rock Island,
Illinois.

The Agency announced a GS-07/11 Contract Specialist position under Vacancy Announcement
No. NCBG144482771280378E on December 17, 2014. Complainant applied for the position
online through USAJOBS on December 17, 2014, by completing the assessment questionnaire and

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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submitting a cover letter, resume, Schedule A letter2, and college transcripts. A selection panel
reviewed Complainant’s application package and scored Complainant as “Acceptable Plus,”
which qualified him for an interview. The panel interviewed Complainant and 68 other candidates.
Following the interview, the panel rated Complainant as “Minimally Acceptable,” and he was not
one of the 13 selectees for the position.

On May 18, 2015, the Agency announced a GS-07/11 Contract Specialist position under Vacancy
Announcement No. NCBG157341231408607E. Complainant applied for the position online
through USAJOBS on May 18, 2015, by completing the assessment questionnaire and submitting
a cover letter, resume, Schedule A letter, college transcripts and other documents. A selection
panel reviewed Complainant’s application package and scored Complainant as “Highly
Acceptable.” Complainant, however, was not referred for an interview. The panel interviewed
nine of the 51 referred candidates and selected seven selectees, three of whom later declined offers
of employment.

On November 14, 2015, the Agency announced a GS-07/11 Contract Specialist position under
Vacancy Announcement No. NCBG150431881554891D. Complainant applied for the position
online through USAJOBS on November 15, 2015, by completing the assessment questionnaire
and submitting a resume, Schedule A letter, Verification of Indian Preference for Employment
Form BIA-4432, and college transcripts. A Human Resources Specialist (HRS) compiled a
referral list which included 33 candidates rated as “Best Qualified.” Complainant was not referred
for further consideration. On December 1, 2015, Complainant was informed that his application
was reviewed and he was found to be qualified; however, he was not referred for further
consideration as he was not among the most highly qualified candidates.

On October 20, 2015 (and amended on December 2, 2015), Complainant filed a formal complaint
alleging that the Agency discriminated against him on the bases of race (Native American) and
disability (vision impairment) when:

1. On September 22, 2015, he learned he was not selected for a Contract Specialist,
GS-1102-07/11 position, under Vacancy Announcement No.
NCBG144482771280378E;
2. On September 23, 2015, he learned he was not selected for a Contract Specialist,
GS 1102-07/11 position, under Vacancy Announcement No.
NCBG157341231408607E; and
3. On December 1, 2015, he learned he was not referred for a Contract Specialist, GS-
1102-07/11 position, under Vacancy Announcement No.
NCBG150431881554891D.

2 Schedule A is a hiring authority for individuals with disabilities and is an exception to the
traditional competitive hiring process. It allows individuals with an intellectual disability, severe
physical disability, or a psychiatric disability to be hired through a noncompetitive hiring process.
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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 EEOC Administrative
Judge (AJ). Complainant requested a FAD. In accordance with Complainant's request, the Agency
issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and found that management had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, as to claim (1), the selecting official (SO) stated that a selection panel
reviewed the resumes of qualified applicants and scored the resumes using the ratings of
“Minimally Acceptable” to “Superior” based on nine desired attributes listed in the selection plan
she developed. Applicants who were scored as Highly Acceptable or Superior were awarded
interviews; however, SO interviewed candidates with a lower score of “Acceptable Plus” because
there was not a large enough pool of candidates. Complainant was ranked as Acceptable Plus. SO
stated that she asked the candidates the same six interview questions and panel members then rated
the candidates. SO affirmed that the candidates rated as Highly Acceptable and with favorable
reference checks were recommended for hire.

SO asserted that Complainant was not among the 13 candidates recommended for selection
because he did not demonstrate the desired nine attributes. For example, SO stressed that
Complainant did not state that he had any depth or breadth of acquisition experience; he did not
talk about working with teams on a demanding mission, he did not show an understanding of
personal interests, integrity, and the ability to manage himself and resources efficiently; he did not
demonstrate logical or critical thinking; and he did not discuss anything related to collaboration.
SO noted that Complainant’s interview responses always focused on his education and he did not
really answer the questions he was asked. By contrast, the selected candidates addressed all
desired attributes more fully than Complainant. Thus, based on his interview and application
package, Complainant was not selected for the position.

With respect to claim (2), SO confirmed that the selection process for this position was the same
as claim (1). After they reviewed the resumes against the desired attributes, only those rated as
Highly Acceptable and Superior were afforded interviews. SO stated that veteran's preference
applied to this procedure, so she began by interviewing veterans having priority preference.
Complainant was no longer in the pool to be interviewed because he was not a veteran and because
he was not as highly qualified as the other candidates. SO added that the biggest difference
between the previous announcement and this one was that there were fewer candidates in the first
announcement whose resumes rated as Highly Acceptable. As a result, more candidates with
lower scores, such as Complainant, were interviewed for the position in claim (1). Complainant
was not chosen for an interview for this position because he was rated as Acceptable, which was
lower than the 19 selected for further consideration. SO stated that the selectee submitted a
superior resume and interviewed better than the other candidates.

Finally, regarding claim (3), HRS stated that Complainant was not referred for further
consideration for this position because he was not among the Best Qualified candidates based on
his responses to the online questionnaire.
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The Agency concluded that Complainant failed to demonstrate that management’s reasons for its
actions were pretextual. As a result, the Agency concluded that Complainant failed to show that
he was subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant challenges SO’s determination that he did demonstrate the desired
attributes for the position in claim (1). Complainant contends that he was disadvantaged by the
“Western-style” face-to-face interview and would have performed better in a phone interview.3
Further, Complainant details extensively his education, personal, and work experience.
Complainant argues that the record demonstrates that SO discriminated against him. 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 804 n. 14. 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). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Here, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for
Complainant’s non-selection for each of the three positions. As to the position at issue in claim
(1), SO affirmed that a selection panel initially reviewed the candidates’ resumes and rated them
based on the nine desired selection attributes. ROI, at 130, 452-53. Initially, those rated as Highly
Acceptable or Superior were called for interviews; however, she included those candidates rated
as Acceptable Plus because there was not an adequate candidate pool. Id. at 453. SO stated that
she asked the candidates the same six questions and the panel compiled scores based on the
responses. Id. Ultimately, SO selected 13 selectees for the position. Id. at 454. SO confirmed
that Complainant was not selected because he did not demonstrate in his responses that he met the

3 There is no evidence in the record demonstrating that Complainant requested a reasonable
accommodation during the selection process for any of the positions at issue. Even so, the
Commission notes that SO stated that she interviewed applicants in person and by phone based on
the candidate’s preference. ROI, at 453.
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nine desired attributes. Id. More specifically, SO stressed that Complainant state that he had any
depth or breadth of acquisition experience; he failed to talk about working with teams on a
demanding mission; he did not state anything regarding understanding personal interests, integrity,
and the ability to manage himself and resources efficiently; he did not display any logical or critical
thinking skills; he did not discuss customer service; and he failed to mention anything regarding
collaboration. Id. Further, SO stated that Complainant’s interview centered around his education,
and he failed to fully answer the questions asked. Id. SO confirmed that the selected candidates
demonstrated the desired attributes more fully than Complainant. Id.

Regarding the position at issue in claim (2), SO affirmed that the selection process was similar to
claim (1), except she began the process by interviewing candidates with priority veterans’
preference. ROI, at 456. SO stated that Complainant was not interviewed for this position because
he was not as highly qualified as the other candidates. Id. Here, after veterans’ preference
individuals were interview, SO interviewed only those rated as Highly Acceptable and Superior.
Id. at 457. Complainant was rated as Acceptable, and he was not referred for an interview. Id.

Finally, with respect to the position at issue in claim (3), HRS stated that this position differed
from the previous two in that this position was advertised under the Delegated Examining Unit.
ROI, at 486. HRS confirmed that the rules under this announcement were stricter and the
procedures were different. Id. HRS stated that she referred only the candidates who were rated
Best Qualified based on their responses to the online questionnaire, which included seven veterans
and 26 non-veterans. Id. Complainant was rated as Highly Qualified, but was not referred for
further consideration because he scored lower on his responses than the Best Qualified candidates.
Id.

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 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). One
way Complainant can establish pretext is by showing that his qualifications are observably superior
to those of the selectees. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

The Commission finds no persuasive evidence that Complainant's protected classes were a factor
in any of the Agency’s actions. The Commission finds that Complainant failed to show that his
qualifications for the positions at issue were plainly superior to those of the selectees. In the
absence of evidence of unlawful discrimination, the Commission will not second guess the
Agency's assessment of the candidates' qualifications. Tex. Dept. of Cmty. Affairs v. Burdine,
450 U.S. at 259.

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 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 as alleged.

0120172297

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 (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
0120172297

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

December 14, 2018
Date