U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 William G..,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 0120160837 Agency No. DLAR150103 DECISION On January 6, 2015, 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 December 2, 2015, final decision 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 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 worked as an Information Technology (IT) Specialist, GS-12, at the Agency's Aviation Richmond facility in Richmond, Virginia. On February 19, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and age (69) when: On January 31, 2015, Complainant learned he was not selected for the position of Supervisory Information Technician Specialist, GS-13/2210, advertised under Vacancy Announcement Number DLAJ6-15-1268191-MP, located in Richmond, Virginia The following pertinent facts were established during the investigation of the formal complaint. The Investigator stated that Complainant identified the selecting official (identifying information not available in record) (hereinafter referred to as "the Selecting Official") as the responsible management official. The Investigator noted that the Selecting Official was no longer employed by the Agency and therefore he was not interviewed, nor did he provide a sworn statement prior to leaving. In lieu of interviewing the Selecting Official, the Investigator interviewed the Chief of Desktop Support (White-American, male, over 40), who was Complainant's third line supervisor, and the Selecting Official's immediate supervisor. The Agency identified the Chief of Desktop Support as the person with the best potential knowledge of the selection process employed by Selecting Official. Complainant applied for the Supervisory Information technician Specialist, GS-13/2210, advertised under Vacancy Announcement Number DLAJ6-15-1268191-MP, and found out in January 2015 that he was not selected. Complainant has been employed with the Agency for over 25 years, and has been employed specifically as an IT Specialist for over 19 years at the Richmond, Virginia facility. Complainant is also a veteran. Complainant alleged that the Selecting Official selected the selectee (African American, female, age: 37) (hereinafter referred to as "the Selectee") because of her sex, age, and amiable relationship. Complainant asserted that his qualifications and time in service were superior to the Selectee's, and yet she was chosen over him. Complainant also noted that the Selectee and the Selecting Official were often seen having lunch together, another indicator that he favored the Selectee. The Interviewer interviewed Complainant's first line supervisor, the Region 7 Team Lead (African American, male, over 40), and Complainant's second line supervisor, the Management Branch Chief (White-American, male, under 40). Both were unaware of Complainant's application, and stated that they played no role in the selection process. The Interviewer also interviewed the Chief of Desktop Support, who noted that he was Complainant's third line supervisor, but had never met him. The Chief of Desktop Support stated that he had no role in the selection process. He noted that a list of 38 candidates was forwarded to the Selecting Official; both Complainant and the Selectee were on the list. He provided that "[a]s permitted by our regulations, [the Selecting Official] was the sole selecting official. There was not a selection board or panel used...[the Selecting Official] used his discretion to decide who he wanted to interview. After those interviews, he selected the person he felt was best qualified." The EEO Counselor's Report does include an unsworn statement from the Selecting Official. It states that on December 17, 2014, the Selecting Official received a certification list with 38 applicants who had applied for the position. Of the 38 applicants, he reduced the list down to a "manageable number of five (5) applicants, who he felt were the best qualified applicants in consideration of conducting formal interviews." The Selecting Official stated that the Selectee had served over 13 years in the IT related field, was well known with senior aviation customers and senior aviation leaders, with exemplary customer service attributes, and her selection was based only on merit. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. The instant appeal followed. Complainant did not raise any new contentions on appeal. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For 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 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. See Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). Here, Complainant has established a prima facie case of sex, and age discrimination by establishing: (1) that he was over the age of 40 and the Selectee was under the age of 40; (2) that he was a different sex than the Selectee; and, (3) that although he had already worked in a similar position for over 19 years, served in the Agency for over 25 years, and had veterans preference, the Selectee, with less years of experience, was selected over him. WHAT OF RACE ??? The burden of production now shifts to the Agency to rebut this presumption of discrimination by articulating a legitimate, non-discriminatory reason for its non-selection of Complainant. While the Agency's burden is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded Complainant. Wilson v. Department of Veterans Affairs, EEOC Appeal No. 01995055 (December 21, 2001). Complainant is entitled to some rationale for management's actions that provides him with an opportunity to attempt to satisfy his ultimate burden of proving that the Agency's explanations were pretext for discriminatory animus. Id. Here, the Chief of Desktop Support provided that there was nothing against the regulations barring a sole selecting official from making isolated hiring decisions. The Chief of Desktop Support acquiesced to the decision making process of the Selecting Official. The only other two management officials that were interviewed could not testify to the selection process as neither was involved in the process. The record is bereft as to how the selection process came to be, particularly as to how the Selecting Official identified the five candidates he deemed worthy to interview, and how he ultimately came to select the Selectee. After careful review of the evidence of record, we conclude that the Agency failed to meet its burden, and that the Agency failed to articulate a legitimate, nondiscriminatory reasons for its action. We find that the record is totally deficient for a proper rendering on the merits of this case. The record contains no sworn affidavit from the Selecting Official. Neither does the record contain any statement from any appropriate Agency official with any actual participation or knowledge articulating the Agency's reasons for Complainant's non-selection. Without the appropriate affidavit or other evidentiary documents clearly demonstrating the specific reasons why Complainant was not selected, there is no legitimate, nondiscriminatory reason that has been set forth which Complainant can rebut. Even if we were to accept as valid evidence one statement from the Chief of Desktop Support, who asserted that the Selecting Official acted within regulations when he hand selected the Selectee, such a blind acceptance, without any further explanations or documentations, is simply too generalized and vague. Based on the lack of documentation, and vague responses, we find that the Agency has simply failed to meet its burden to articulate legitimate, nondiscriminatory reasons for the non-selection of Complainant. Thus, the Agency has not adequately rebutted Complainant's prima facie case of sex, age and race discrimination. We therefore conclude that Complainant has prevailed in establishing that he was discriminated against on the basis of his sex, age and race when he was not selected for the Supervisory Information Technician Specialist position, GS-13/2210, advertised under Vacancy Announcement Number DLAJ6-15-1268191-MP. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's finding of no discrimination in this complaint and REMAND the matter for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following remedial action within 120 days of the date this decision is issued (unless otherwise indicated): 1. The Agency shall place Complainant in a comparable position to the listed Supervisory Information Technician Specialist position, GS-13/2210, advertised under Vacancy Announcement Number DLAJ6-15-1268191-MP. If Complainant declines the position, Complainant's entitlement to back pay will cease on the date on which he declines the position. 2. The Agency will determine the appropriate back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant will cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and will provide all relevant information requested by the Agency. 3. The Agency shall consider Complainant's claim for compensatory damages, incurred as a result of the Agency's discriminatory actions. Within 15 days of the date this decision becomes final, the Agency shall notify Complainant of his right to present evidence to the Agency regarding her claim for compensatory damages. Complainant shall provide objective evidence that the damages in question were a result of the Agency's discrimination and of the amount of the claimed damages. Within 30 days of the submission of such evidence, the Agency shall issue a final agency decision on this issue, with appropriate appeal rights to the Commission. The Agency is further directed to 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 benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at the Dwight D. Eisenhower Army Medical Center copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (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 (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 Carlton M. Hadden, Director Office of Federal Operations February 14, 2018 __________________ Date 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160837