Thomas E. Goulding, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A44990_r (E.E.O.C. Nov. 29, 2004)

01A44990_r

11-29-2004

Thomas E. Goulding, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.


Thomas E. Goulding v. Department of Defense

01A44990

November 29, 2004

.

Thomas E. Goulding,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Contract Management Agency),

Agency.

Appeal No. 01A44990

Agency No. XL-99-043

Hearing No. 160-A0-8438X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) complaint of unlawful

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 appeal is accepted pursuant to 29 C.F.R. �

1614.405.

The record reveals that complainant, a Termination Contract Specialist

at the agency's Defense Contract Management Agency East ((DCMAE),

formerly (DCMDE)) in Boston, Massachusetts, filed a formal EEO

complaint on September 13, 1999. Therein, complainant claimed that

the agency discriminated against him on the bases of sex (male) and age

(D.O.B. 7/19/46) when:

on June 21, 1999, he was notified he was not selected for the position of

Contract Specialist, GS-1102-13, at DCMDE Boston-00 under Job Opportunity

Announcement #99-442.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The agency thereafter filed a Motion to

Dismiss or in the alternative, an Agency's Motion for Summary Judgment

or in the Alternative Findings and Conclusion Without a Hearing.

In its motion, the agency argued for the AJ to issue a decision without

a hearing in favor of the agency, finding no discrimination. The agency

argued that assuming arguendo complainant established a prima facie

case of sex and age discrimination, management articulated a legitimate,

non-discriminatory reason which complainant failed to show was pretextual.

Specifically, the agency found that six candidates, including complainant,

applied for the position of Contract Specialist position, GS-1102-13.

The agency argued that the interview panel consisted of two panelists; and

that the panel reviewed the application packages of all six candidates.

The agency argued that one of the panelists developed the six interview

questions with the Selecting Official (SO) prior to the interview dates.

The agency further noted that the six candidates, including complainant,

were interviewed for the subject position. The agency noted that the

SO attended the interviews as an observer. The agency noted that the

interview panel recommended selectee, a younger female for the subject

position because she was the best qualified for the subject position

based on her knowledge and experience.

The agency noted in his affidavit, the SO stated that he sat in when

the candidates were being interviewed by the two panelists and took

in the information which they provided and used their input in making

the selection of the selectee. The SO further stated that it was the

interview panel's determination that the selectee was "the most articulate

and the most qualified of the six candidates who were considered for

the position." The SO stated that he chose the selectee "based on

my review of her work experience both present and past and based on a

unanimous recommendation of the panel." The SO stated that the selectee

had the following experience: contract administration; contract closeout

payments; field guidance; knowledge of all contract types, policies and

procedures; MMR/PMR and metric reporting and processing. The SO stated

that the selectee also "had an excellent contract background in the ACO

and Procurement Office and she was deeply involved with CAO performance

metric data." The SO also found that the selectee was familiar with the

UCA process and all CAO contract metrics. The SO stated that during

the interview, the selectee showed "she was current with DCMC changes

and she was extremely knowledgeable with the districts/CAO data base

systems which were being deployed."

Regarding complainant, the SO found that complainant's knowledge of the

current duties of the subject position to be "very limited" and felt

that he would not "be effective" if selected for the subject position.

Specifically, the SO stated that complainant "did not keep current with

DCMC changes and he was not familiar with the duties associated with

the performance plans/metrics." The SO noted a review of complainant's

application indicated that his current work centered on termination

contract and TCO work. The SO further noted that complainant "was

not involved with the performance plan and the Mission Management

Review/process, Management Reviews and he had a very weak response to

the Undifinitized Contractual Action metric."

Noting that complainant informed an EEO Counselor that the SO chose

the selectee so that he would not have to provide justification for

the selection, the SO stated "I have never made such a statement to

the EEO counselor." The SO stated that in the past, he made a number

of selections and that he had written justifications to the EEO office

"when required." The SO stated that if the selectee "was not the best

candidate I would have written a justification." Moreover, the SO stated

that the selectee's age and sex were not factors in his determination

to select her for the subject position.

The agency also noted that in his affidavit, one of the panelists (P1)

stated that prior to the interviews, he and the SO developed a set

of questions relating to the subject position. The P1 further stated

that all six candidates were interviewed and asked the same questions.

The P1 stated that he recommended the selectee to the SO for the subject

position "based on how well she performed during the interview process"

and that she was "more articulate and informed than [Complainant] or

the other candidates." The P1 stated that it was his impression that

during the interview process complainant "came across as being very laid

back and that he "did not seem to be as articulate in his responses to

the questions as [Selectee]." The P1 stated that because the subject

position required a significant interaction with the CAO Field Officers,

he had a serious question as to whether or not complainant "would be

aggressive or driven enough to interact with field officers." The P1

stated that he felt that complainant did not handle the interview as

well as the selectee. Furthermore, the P1 stated that the selectee

"knew the metric process very well, she seemed more current on how the

procedures worked between our offices and the field officer and she was

much more focused during the interview process."

The agency further noted in her affidavit, the other panelist of the

two-member interview panel (P2), stated that she recommended the selectee

for the subject position because she was "more articulate than any of

the other candidates that were interviewed." The P2 further stated

that the selectee had "prepared well" for the interview. Furthermore,

the P2 stated that the selectee had "an excellent background as an ACO

in the Procurement Office."

Regarding complainant's claim that he was "highly-qualified" for the

subject position, the agency concluded that complainant did not provide

evidence to support his contentions. The agency further noted that he did

not refute management's assessment that the selectee's work experience

was more recent and more related to the subject position. Moreover,

the agency noted that complainant admitted that he had previously worked

for the P1. The agency noted in his affidavit, complainant stated that

there had been no "adversarial relationship" between him and the P1.

On June 16, 2004, the AJ granted the agency's motion to dismiss.

The AJ determined that the agency properly set forth the undisputed

facts and applicable law in its "Agency's Motion for Summary Judgment

or in the Alternative Findings and Conclusion Without a Hearing,"

incorporated the Motion in her decision, and found no discrimination.

The AJ further concluded that complainant established a prima facie

case of sex and age discrimination because the selectee, a female,

under 40 years of age, not in complainant's protected classes, was

selected for the subject position. The AJ further concluded that the

agency articulated legitimate, nondiscriminatory reasons for its actions.

The AJ found that while complainant was qualified, he was not the best

candidate referred for consideration by the SO. The AJ found that

complainant did not establish that more likely than not, the agency's

articulated reasons were a pretext to mask unlawful discrimination.

The agency implemented the AJ's decision in a final order dated June

25, 2004. It is this decision that is the subject of the instant appeal.

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, 322-323 (1986); Oliver v. Digital

Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is

�material� if it has the potential to affect the outcome of a case.

If a case can only be resolved by weighing conflicting evidence, summary

judgment is not appropriate. In the context of an administrative

proceeding, an AJ may properly consider summary judgment only upon a

determination that the record has been adequately developed for summary

disposition.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected class.

Accordingly, the agency's final order implementing the AJ's decision

was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 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 (S0900)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 29, 2004

__________________

Date