Complainant v. Chuck Hagel, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 0120140428 Agency No. P9-13-0009 DECISION On November 12, 2013, Complainant filed an appeal from the Agency's October 15, 2013, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency's final decision properly concluded that Complainant failed to prove that the Agency subjected him to age discrimination when it did not select him for the position of Contract Price/Cost Analyst position, GS-1102-12. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-12 Industrial Property Management Specialist in the Emergency Essential Program, located at the Defense Contract Management Agency's (DCMA) Property Center in Philadelphia, Pennsylvania. Complainant has worked in this position since March 2009. The duties of the Contract Price/Cost Analyst position include developing and recommending price/cost objectives for negotiations; conducting price/cost analysis of unpriced spare parts; forecasting price trends; reviewing and evaluating contract price proposals for adequacy and legal compliance; and preparing price analyst reports. Report of Investigation (ROI), Exhibit B-1, p. 18. Previously at the Agency, Complainant worked as a GS-12 DCMA Contract Price/Cost Analyst in Navy Special Emphasis Operations from September 2007 until February 2009. Complainant worked as a GS-12 DCMA Contract Price/Cost Analyst from May 2004 until September 2007. From June 2000 until May 2004, Complainant worked as an Auditor with the Agency, and in that position, Complainant developed and implemented audit plans and programs; planned, conducted, and reported on complex contract audit assignments in connection with procurement and contracting activities; analyzed and evaluated contractor financial management systems; and analyzed contractor practices, policies, and management systems. Complainant has a Master of Business Administration and a Bachelor of Science degree in Accounting. In August 2012, Complainant learned of and applied for two GS-12 Contract Price/Cost Analyst positions at DCMA Boeing Philadelphia. Additionally, Complainant inquired with the DCMA Human Capital Director to see if he could be placed in either position, and his resume was forwarded for consideration. The qualifications for this position include one year of specialized experience equivalent to the next-lower grade level (GS-11), including analyzing a variety of proposed procurements; audit reports, cost, and pricing data and experience; consulting with contractor personnel; and making pricing decisions. Additionally, the position requires a bachelor's degree and at least 24 semester hours in any of the following fields: accounting, business finance, law, contracts, purchasing, economics, industrial management, marketing, quantitative methods, or organization and management. The Agency deemed Complainant qualified for the position and referred him and 10 other candidates for the position on the Merit Certificate of Eligibles dated September 7, 2012. No interviews were conducted. The selecting official selected 41-year old and 51-year old applicants (C1 and C2, respectively) for the position. On November 27, 2012, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of age (59) when, on October 17, 2012, it failed to select him for the position of Contract Price/Cost Analyst, GS-1102-12, DCMA Boeing Philadelphia, under Job Announcement Number SWH812P6915864712987. In an investigative statement, Complainant stated that he should have been placed in the vacancy without competition because he was qualified for the position and was coming from the Emergency Essential Program. Complainant further stated that he believed that he was equally or more qualified than the selectees because he has extensive government acquisition experience, was deployed to Iraq and Afghanistan, received four incentive awards, three special act awards, two Exceptional Civilian Service Awards, and one on-the-spot award during deployment as a Contract Administrator. Complainant stated that, after he initiated his complaint, the Agency placed him in another GS-12 position, and his supervisor told him that it was because of his complaint. Complainant also stated that in January 2013, he was offered and accepted a position as a Contract Price/Cost Analyst with the Agency's Cost and Pricing Center in Philadelphia. The Director of the Integrated Cost Analysis Team (ICAT) at DCMA Boeing Philadelphia was the selection official for the position and did not interview the candidates. The Director stated that he requested authorization to fill the position; coordinated with the Army Servicing Team (AST) for release of the vacancy announcement; reviewed the candidate listing from AST; and made the selection. The Director further stated that he made his selection based on his review of the resumes for cost/pricing functional experience, educational accomplishments, and awards as reflected in the resumes; reference checks; review of eligibility for merit promotion; and review of eligibility for "852 Acquisition."1 The Director further stated that selectees C1 and C2 were selected from the same certificate for the position at the same series and grade level. He stated that C1 was a promotable GS-11 on the ICAT team that he directed, and C2 was an outside candidate. The Director stated that he selected C1 because she was merit-promotion eligible; had a strong resume in contract/pricing, proposal, and subcontractor experience; had Bachelor of Arts and Master's degrees; and had strong reference checks. The Director stated that he selected C2 because she had a strong resume in leadership contract/pricing and proposal evaluation experience; had a Bachelor of Arts degree and a Master's in Business Administration; and had strong reference checks. The Director stated that C2 filled an 852-funded position and was an external candidate. The Director stated that he did not select Complainant because he did not rank in the best/most qualified group for the merit promotion position, and did not qualify for the 852-funded position. The Director stated that Complainant ranked lower than fourth among the candidates. He also stated that based on Agency guidance, 852 eligibility criteria mandate that candidates must meet the following qualifications: 1) candidates must never have served in a Department of Defense position; or 2) candidates must currently be in a Department of Defense acquisition position and hired after January 28, 2008. The Director stated that the evaluation data he had indicated that Complainant entered Agency acquisition in 2004, before the January 28, 2008, date identified by criteria 2. On the date of his statement (November 12, 2013), the Director stated that he had known Complainant for less than a year and did not know his age at the time of the selections. The Contract Management Deputy (Deputy) stated that she received Complainant's resume in August 2012 as an attachment to an e-mail from a Human Capital Directorate official. The Deputy stated that the official was working to place Complainant because he left the Emergency Essential program in March 2012. The Deputy stated that the official said that Complainant was interested in being placed in a Property Management Specialist position, but such a position was not available. The Deputy further stated that the official then asked if the Deputy would agree to place Complainant at DCMA Boeing Philadelphia, but there were no vacant funded GS-12 positions at DCMA Boeing Philadelphia at that time. The Deputy further stated that she did not provide any input to the Director in the selection process. The record contains the resumes of selectees C1 and C2. C1's resume indicates, in relevant part, that she previously worked for the DCMA as a Contract Cost/Price Analyst since June 2009; the Department of the Navy as a Contract Specialist from March 2008 until June 2009; as an Associate Registrar for Education Programs for Eastern University from July 2006 until March 2008; as an Education Advising Assistant from March 2004 until June 2006, and as an Assistant Registrar for Faculty Services from August 2001 until February 2004. Additionally, C1's resume indicates that she had a master's degree in Education, a bachelor's degree in Business Administration, and 24 semester hours in Accounting. C2's resume reflects that during the relevant time period, C2 had worked as an Accountant with the Naval Surface Warfare Center since January 2012. Additionally, C2 worked as a Contract Cost/Price Analyst from September 2008 until January 2012, a National Guard Auditor from September 2005 until April 2008, an Accounting Supervisor with the Department of Veteran Affairs from April 2000 until September 2005, and as a Tax Preparer from January 1999 until January 2003. C2's resume further reveals that she has a Master of Business Administration and a Bachelor's Degree in Accounting. Final Agency Decision 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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the Agency found that Complainant failed to show that he had "far more superior" qualifications than the selectee, or otherwise show that the Agency's non-discriminatory reasons for his non-selection were pretext for unlawful discrimination. CONTENTIONS ON APPEAL On appeal, Complainant reiterates the assertions he made during the investigation and claims. The Agency does not raise any arguments on appeal. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Disparate Treatment In the absence of direct evidence of discrimination, the allocation of burdens and presentation of proof in a case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). To establish a prima facie case of age discrimination, a complainant must show that he was over 40 years of age, that he was subjected to an adverse employment action, and that he was treated less favorably than other similarly situated employees younger than himself, i.e., he was accorded treatment different from that given to persons who are considerably younger than he. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). Next, an agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If an agency is successful, then the complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256. As an initial matter, we note that the record reflects that Complainant was not qualified for the position for which C2 was selected because this position was an 852-funded position. In order to be eligible for an 852-position, applicants have to meet the following qualifications: 1) must never have served in a Department of Defense acquisition coded/designated position and/or must be an employee of another Agency as of January 28, 2008; or 2) must currently serve in an acquisition coded/designated position and entered the Agency with an entrance-on-duty date after January 28, 2008. Because Complainant entered an Agency acquisition position before January 28, 2004, he was not qualified for the 852-position at issue in this case. Consequently, we find that Complainant failed to establish a prima facie case of age discrimination for the 852-funded position. With respect for the merit promotion position, Complainant applied for and did not receive the Contract Price/Cost Analyst position at DCMA Boeing Philadelphia. Complainant was evaluated by the Agency's Merit Program procedures and deemed among the "best qualified" for the position. ROI, p. 179. However, the Agency selected a 41-year old applicant (C1) for the position, and did not select Complainant, who was 59 years old. Further, although the Director stated that he did not know Complainant's age at the time of his non-selection, the record reflects that the resume that the Director reviewed revealed that Complainant entered the U.S. Army in January 1972, approximately 40 years before the non-selection at issue. Thus, we conclude that the Director was aware that Complainant was older than 40 years old. Moreover, we find that the Agency's selection of a considerably younger applicant for the position created an inference of age discrimination in this case. See O' Connor v Consolidated Coin Caterers, Inc. 517 U. S. 308, 313 (1996). Consequently, we find that Complainant established a prima facie case of age discrimination for this position. We also find that the Agency met its burden of production to articulate legitimate, non-discriminatory reasons for its actions. The Director stated that he selected C1 because she was merit-promotion eligible; had a strong resume in contract/pricing, proposal, and subcontractor experience; had Bachelor of Arts and master's degrees; and had strong reference checks. The Director further stated that he did not select Complainant because he did not rank in the best/most qualified group and ranked lower than fourth among the candidates. We now must examine whether Complainant has shown that the Agency's articulated explanations are pretext for unlawful discrimination. We note that Complainant has worked for DCMA since 2007 and the Agency since 2000; served as an Auditor, Accountant, Financial Examiner, GS-12 Contract Price/Analyst, and Industrial Property Management Specialist; received on-the-spot, incentive, special act, and Exceptional Civilian Service awards; and has a Master of Business Administration and a Bachelor of Science in Accounting degree (cum laude). Selectee C1 has been with the Agency since March 2008 and DCMA since June 2009; served as a GS-11 DCMA Contract Cost/Price Analyst beginning in June 2009 until the time of the selection; previously served as a Contact Specialist for the Department Navy and an Eastern University Associate Registrar for Education Programs and an Educational Advising Assistant. C1 has a Master's Degree in Education and Bachelor's Degree in Business Administration. It is noteworthy that Complainant was a GS-12 Contract Price/Cost Analyst for DCMA from May 16, 2005 until September 2007, whereas C1 only had been a GS-11 DCMA Contract Price/Cost Analyst since June 2009. Complainant has a Master of Business Administration, whereas C1 only has a Bachelor's Degree in Business Administration. Further, Complainant's accounting degree is more closely related to the skills needed for this position than C1's education degree. Further, while Complainant has received a bevy of distinguished awards for his work with the Agency, C1's resume does not reflect that she has received any awards. Finally, Complainant has significantly more overall experience that is relevant to the position at issue in this case, including experience as an Auditor, Accountant, Financial Examiner, GS-12 Contract Price/Analyst, and Industrial Property Management Specialist. In contrast, much of C1's experience before March 2008 is less relevant to the position at issue, and largely consists of work in the educational field as an Office Manager, Program Advisor, Operations Associate/Defined Benefits, Assistant Registrar, and Educational Advising Assistant. As such, we find that Complainant's qualifications are plainly superior to those of selectee C1. Wasser v. Department of Labor, EEOC Request No. 05940058 (Nov. 2, 1995) (an employee may be able to establish pretext with a showing that his qualifications were plainly superior to those of the selectee); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We note that the Director also claims that Complainant was not selected because he did not rank in the best/most qualified group and ranked lower than fourth among the candidates. However, we note that the record does not contain any evidence of such a ranking or evaluation of the applicants' qualifications. Moreover, the Director has not provided any explanation why he viewed Complainant as ranking lower than fourth among the candidates. As such, the Director's assertions about Complainant's qualifications and non-selection are suspiciously thin and unworthy of belief. Likewise, although the Director claimed that C1 had "strong reference checks," he does not specify what the asserted references said about C1, nor is there any documentation in the record regarding the references. We therefore also find that the Director's assertion about C1's references is also unworthy of belief. Essentially, we are persuaded that the Agency's explanations are a cover for age discrimination, and that, but for his age, Complainant would have been selected for the position at issue. Consequently, we find that Complainant proved that the Agency discriminated against him on the basis of age when it did not select him for a GS-12 Contract Price/Cost Analyst position at DCMA Boeing Philadelphia. CONCLUSION Accordingly, based on a thorough review of the record, the Commission REVERSES the Agency's finding of no discrimination and REMANDS this matter to the Agency to take remedial actions in accordance with this decision and the Order below.2 ORDER Within sixty (60) calendar days of this decision becoming final, the agency is ORDERED to take the following remedial actions: 1. The Agency shall offer Complainant the position a GS-12 Contract Price/Cost Analyst position at DCMA Boeing Philadelphia, or a substantially equivalent position. Thereafter, Complainant shall have 30 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 30-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond his control prevented a timely response. This retroactive placement shall presume Complainant has permanent employment status in the position and include all promotions and monetary remuneration attached to the position. 2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Provide the responsible management official with at least eight (8) hours of training on responsibilities, rights and obligations under federal equal opportunity laws and regulations. The training must pay particular attention to the laws prohibiting age discrimination. 4. Consider taking appropriate disciplinary action against the responsible management official. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management official has left the Agency's employ, the Agency shall furnish documentation of his departure date. 5. Post a notice in accordance with the paragraph below. 6. Submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. 7. POSTING ORDER (G0610) The Agency is ordered to post at Defense Contract Management Agency's (DCMA) Boeing in Philadelphia, Pennsylvania copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 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 77960, Washington, DC 20013. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 April 3, 2014 Date 1 This term apparently refers to a source of funding for the position. 2 We note that compensatory damages or attorney's fees are not available under the ADEA. See Tellez v. Dep't of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140428 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140428