Kerry B.,1 Complainant,v.Dr. Mark T. Esper, Acting Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

2019002313 (E.E.O.C. Sep. 24, 2019)

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

Kerry B.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 2019002313

Hearing No. 530201600478X

Agency No. DLAN160172

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 1,
2019, Final Order concerning an equal employment opportunity (“EEO”) complaint alleging
employment discrimination in violation of 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 was an applicant for
employment with the Agency in Philadelphia, Pennsylvania.

On May 13, 2016, Complainant filed an EEO complaint alleging discrimination by the Agency
on the bases of age (54) and disability (Schedule A eligible) when, on March 23, 2016, he
became aware that he had received a rating of “not eligible” for the position of Contract
Specialist, GS-1102-11/12, recruited under Job Opportunity Announcement (“JOA”) No.
DLAContrSvcs-161627501MP.

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 Agency accepted the complaint and conducted an investigation.

The evidence developed during the investigation showed that on or about February 16, 2016,
Complainant responded to an online posting for JOA No. DLAContrSvcs-161627501MP, which
advertised five vacancies for Contractor Specialists at the GS-11 or GS-12 level in the Agency’s
Contracting Services Office, in Philadelphia, Pennsylvania. Eligible applicants were limited to
current Agency employees within commuting distance, and individuals, regardless of location,
who qualified for consideration under veteran’s preference and/or the Agency’s Schedule A
hiring authority. Complainant applied to both the GS-11 and GS-12 level positions as a Schedule
A candidate.

Complainant and the other applicants completed an online questionnaire based on benchmark
requirements for the position and grade, determined by the Office of Personnel Management
(“OPM”). Applicants whose score reflected sufficient experience or who warranted priority
consideration under special hiring provisions, received another questionnaire. The responses
accompanied by application packages were forwarded to the Agency’s assigned Human
Resources Specialist (“H1”) (age 31) specializing in Recruitment Placement and Classification.

H1 scored and ranked the applicants to reflect the “degree to which [the applicant’s] background
matches the knowledge skills and abilities [“KSAs”] required for this position.” The Contract
Specialist position required three technical competencies: Contract Administration, Contract
Solicitation, and Contract Performance Management. H1 compiled a “best qualified” list and
submitted it to the Selecting Official, who would make a selection from the list, with or without
interviewing the candidates. The five selectees (“S1,” “S2,” “S3,” “S4,” and “S5’), were all hired
at the GS-12 level.

On or about March 23, 2016, Complainant was notified that he been determined “not eligible,”
for the Contract Specialist position at the GS-11 or GS-12 levels. According to the Notice,
Complainant’s application was not forwarded as a GS-12 because “there are higher qualified
Veterans Preference eligibles.” While Complainant’s application was reviewed at the GS-11
level, it was not forwarded it to the hiring official because the “application does not show that
[he] had the length of specialized/specific experience needed for this specialty and grade.”

Meanwhile, Complainant had been hired by the Agency as a Contract Specialist, Troop Support,
GS-07, in Philadelphia, Pennsylvania.

On April 8, 2016, Complainant contacted the Agency’s EEO Office. Complainant reasoned that
his application was rejected for “full consideration” based on his disability, as he disclosed his
Schedule A status, and his age because his college transcripts revealed that he earned a
bachelor’s degree in 1985. The EEO Office notified the Human Resources office of
Complainant’s allegations, and a different HR Specialist (“H2”) (age 29) reviewed
Complainant’s application. H2, who reviewed applications on a daily basis and specialized in
Recruitment and Placement Classification, reached the same conclusion as H1.
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She also clarified that while Complainant, a Schedule A candidate, “was eligible for the vacancy;
he was not qualified.” H2 explained that, “[w]hen we review qualifications we are not looking at
anything except for the experience in their resume.”

Complainant disputed H1 and H2’s assessment, providing a list of GS-11 and higher positions
with the Agency and other Federal agencies, where he allegedly interviewed over the past five
years. He also disclosed that he was employed by the Agency, asking “[i]f I did not have any
experience with contracts, then why did the [Agency] hire me as a [GS-07] Contract Specialist?”

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation (“ROI”) and notice of right to request a hearing before an Equal
Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge
(“AJ”). Complainant timely requested a hearing. The assigned AJ issued a Discovery Order,
providing the parties with an opportunity to further develop the record. Afterward, the Agency
submitted a Motion for a Decision Without a Hearing. The AJ subsequently issued a decision by
summary judgment in favor of the Agency on September 18, 2018.

The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (“EEO-MD-110”), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the Agency was motivated by discriminatory animus. While Complainant has, in a very general
sense, asserted that facts are in dispute, he has failed to point with any specificity to particular
evidence in the investigative file or other evidence of record that indicates such a dispute.

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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 his favor.

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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).

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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

The Agency’s legitimate non-discriminatory reason for not providing Complainant an
opportunity to interview for the Contract Specialist position at the GS-11 level was that his
“application does not show that [he] had the length of specialized/specific experience needed for
this specialty and grade.” The Agency also provided metrics based on its requirements and the
Office of Personnel Management and demonstrated that Complainant’s resume lacked the
specific experience it was seeking.

H1 testified that Complainant was among “35 people rated ineligible for various reasons.” H1
rated Complainant non-eligible because his “resume lacked all of the KSAs…needed for the
position based on the criteria of the position and the position grade level.” H1 testified at length
on the types of experience necessary for a candidate to be “qualified” including, but not limited
to:

Pre-award, award, and post award actions required for the acquisition of various
supplies and services, reviewing purchase requests…monitoring solicitation
through entire phase, preparing abstracts of offers, reviewing offers for adequacy,
completeness and compliance with evaluating criteria, performing price and cost
analysis on offers…formulating a negotiation strategy and identifying areas
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subject to negotiation, negotiating with potential contractors ensuring contractual
coverage of all requirements…handling complex controversial post award
actions… contract performance management.”

Complainant’s resume does not reflect professional experience with any of these assignments.
We note that the “Benchmark Report” H1 generated to show the qualifications for a GS-11
Contract Specialist lists Level II DAWIA certification (Contracts) as a requirement (Defense
Acquisition Workforce Improvement Act) Position. DAWIA certification).

H2 testified that Complainant was “not qualified because his resume lacked the KSA’s from the
job announcement. He does not have experience with contract administration, contract
solicitation or contract performance management, and those are three very key pieces of the
position.” In addition, H2 testified that Complainant’s resume did not reflect “major duties
required by the position.”

The burden of proof moves to Complainant to prove, by a preponderance of the evidence that the
Agency’s proffered reasons for its disputed actions were, in fact, a pretext masking the role
discrimination based on his disability or age played in this matter. After careful examination of
all the evidence of record, as well as the arguments of the parties, we conclude that the AJ’s
decision that Complainant did not meet this burden is fully supported by the record.

The resume Complainant submitted for consideration in February 2016 states in all capital letters
across the top, “Controller / Business Manager / Tax Manager / Auditor,” and reflects varied
accounting and advising experience, tax law knowledge, and real estate contracts. It also
indicates Complainant is a Certified Public Accountant in Pennsylvania and New Jersey.
However, these qualifications do not reflect the technical competencies of Contract
Administration, Contract Solicitation, and Contract Performance Management that the Human
Resources officials were rating applicants on for the position in question. At the time
Complainant applied, he was not an Agency employee working as a Contract Specialist, GS-07,
and had no coursework completed toward Level I DAWIA. 2 The position in question did not
require a CPA or accounting and tax experience demonstrated by Complainant.

On October 24, 2017, the AJ issued a Discovery Order, providing both parties ample opportunity
to develop the record, and specifically requesting that the Agency furnish the application
package, age, and disability information of the five selectees. Of the selectees, only S4 disclosed
his disability status. However, two of the selectees are close in age to Complainant.

2 Complainant sent information to the AJ by email indicating from March 2016 through March
2017, he was employed by the Agency as a Contract Specialist (GS-7) and completed his
DAWIA Level I certification and was two courses shy of his Level II certification. However,
this information was not (and could not have been) on his application materials for the position
in question because all the events occurred after he submitted his application in February 2016.
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All of the applicants evince backgrounds and experience far more qualifying based on the KSAs
and technical competencies of the position, supporting the Agency’s legitimate non-
discriminatory reason.

S1 (age 53) had been working as a Contracting Specialist, GS-12, in Philadelphia, Pennsylvania,
for the Agency since 2013, and held positions at the Agency as an Acquisition Project Analyst,
Acquisition Specialist, and Post Award Acquisition Specialist since 2009. She was also
competitively selected for the Agency’s Procurement & Acquisition Policy Acquisition
Exchange Program 1102, and detailed to the Agency’s Washington, DC office from March
through December 2015. S1’s application package reveals that she received her DAWIA Level
II Certification in 2011.

S2 (age 33) had been working as a Contracting Specialist, GS-12, in Philadelphia, Pennsylvania,
for the US Navy, Fleet Logistics Center Philadelphia Office, since May 2007. S2’s application
package reveals that she received her DAWIA Level II Certification in 2010.

S3 (age 44) had been working as a Contracting Specialist, GS-12, in Philadelphia, Pennsylvania,
at the Agency’s Industrial Hardware Directorate since 2014. She previously worked for the
Agency’s Subsistence Directorate as a Contracting Specialist, GS-12, from 2004 to 2013. Her
responsibilities included solicitations, pre-award acquisition, and acquisition strategies. S3’s
application package reveals that she received her DAWIA Level II Certification in 2006.

S4 (41, 30% disabled veteran) had been working as a Contracting Specialist, GS-12, in
Philadelphia, Pennsylvania, Naval Surface Warfare Center, since 2011. S4’s resume includes
leadership experience through his military career and a background of contract solicitation,
negotiation, and award procurements, and shipment and logistics a contracting business owner.
S4’s application package reveals that he received his DAWIA Level II Certification in 2013.

S5 (age 54) had been working as a Contracting Specialist, GS-11, in Philadelphia, Pennsylvania,
Defense Contracting Management Agency (“DCMA” Boeing V-22 Helicopter Program and
Acquisition Category Program, since 2015, and as a Contract Administrator, GS-11, since 2012.
She worked for the Agency as a Contract Specialist, GS-11, from 2008 to 2012. S5’s application
package reveals that is DAWIA Level II Certified (date not provided).

In sum, on appeal, Complainant failed to prove, by a preponderance of the evidence, that H1 or
H2 were motivated by discrimination. While he repeatedly asserts that he was qualified and
eligible for an interview based on his CPA licenses and predominantly accounting and tax-
related professional background, Complainant offers no explanation for how this translates to the
KSAs and technical competencies required of a Contract Specialist at the GS-11 or GS-12 level
and possessed by all the selectees. He also acknowledges that he lacked the contracting
certification requirement.

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CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision.

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
department head, identifying that person by his or her full name and official title.
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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

September 24, 2019
Date