U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 King W.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 0120160925 Agency No. P6150142 DECISION On December 30, 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 November 30, 2015, final 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Agency's FAD which found that Complainant was not subjected to discrimination based on sex, religion, age, and reprisal is AFFIRMED in part and REVERSED in part. ISSUES PRESENTED Was the Agency correct in concluding that Complainant did not prove by a preponderance of the evidence that he was subjected to sex, religion, age and reprisal for any of his claims? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an applicant for employment at the Agency's various agency locations. Each of the positions had different selection procedures and different selecting officials. Complainant applied to a Contract Administrator position in the DCMA Central Region, Milwaukee, Wisconsin. A panel was appointed to screen and interview candidates, and make a hiring recommendation. Report of Investigation (ROI), p. 10. The selecting official was Supervisory Contract Specialist (S1), and panel members who conducted interviews included the Pre-Award Survey Manager (S2). ROI, p. 11-12. S2 recalled that he previously worked with Complainant, and performed a Google search on Complainant after the interview. ROI, p. 1748. S2 explained that he discovered that Complainant previously engaged in EEO related litigation with the Army over a request for religious accommodation. Id. According to S2, Complainant requested a new microwave for religious reasons related to his diet. Id. S2 stated that he shared with the other panel members that Complainant previously engaged in EEO activity during a discussion regarding the panel's rankings. ROI, p. 1748. S2 stated that he told other panel members: "based on what I had read online, I thought that perhaps if [Complainant] had a case against the Department of the Army over what he felt was unfair treatments over his procurement of a microwave oven and he did not get a resolution to his request for reimbursement, it might have been very important to him, but I felt he might have another chance of bringing a complaint over something else down the road [sic]." ROI, p. 1749. S2 also attested that he "made a statement to my other panel members that [Complainant] was high risk based on what I had learned. It is possible that when I said that, it may have influenced our decision." ROI, p. 1751. Other panel members testified that they did not consider S2's information regarding Complainant's EEO matters. See, e.g., Affidavit of Contract Administrator, ROI, p. 1736-1737. Panel members also testified that other candidates performed better during the interview and had better qualifications than Complainant. ROI, p. 1737. According to the selecting official, S1, he could not find a suitable candidate from the first list of eligible candidates which Complainant was on, and therefore requested a second list. S1 did not identify a suitable candidate on the second list either, and no selection was made for the vacancy announcement. ROI, p. 1711-12. On February 14, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Jewish), age (69), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA) when: 1. On March 7, 2015, Complainant became aware that S1, Supervisory Specialist, did not select him for the GS-1102-12, Contract Administrator position, DCMA Eastern Region, Endicott, New York; 2. On March 1, 2015, Complainant became aware that a Supervisory Contract Specialist did not select him for the GS-1150-11, Contract Administrator position, DCMA Central Region, Milwaukee, Wisconsin; 3. On February 23, 2015, Complainant became aware that a Supervisory Industrial Specialist did not select him for the GS-1150-11, Industrial Specialist position, DCMA Eastern Region, Pittsfield, Massachusetts; 4. On February 9, 2015, Complainant became aware that he was not referred for the GS-1910 11 target 12, Quality Assurance Specialist (Nuclear) position, DCMA Central Region, Milwaukee, Wisconsin; 5. On February 2, 2015, Complainant became aware that he was not selected for the GS-1102-11 position, DCMA Eastern Region, New York, New York; 6. On January 30, 2015, Complainant became aware that he was not referred for the GS-1102-12 Procurement Analyst position, DCMA Eastern Region, Boston, Massachusetts; 7. On January 29, 2015, Complainant became aware that he was not referred for the GS-1910-11 position, DCMA Eastern Region, Syracuse, New York; 8. On December 15, 2014, Complainant became aware that he was not selected for the GS-1102-11 position, DCMA Eastern Region, Boston, Massachusetts; 9. On December 9, 2014, Complainant became aware that he was not referred for the GS-1150-11 position, DCMA Central Region, Milwaukee, Wisconsin; 10. On November 26, 2014, Complainant became aware that he was not referred for the GS-1102-12 position, DCMA Eastern Region, Woburn, Massachusetts; 11. On November 22, 2014, Complainant became aware that he was not referred for the GS-1910-12, Quality Assurance Specialist position, DCMA International, Herzliya, Israel; 12. On October 29, 2014, Complainant became aware that he was not selected for the GS-1150-11 position, DCMA Eastern Region, Syracuse, New York; 13. On October 1, 2014, he became aware that he was not selected for the GS-1102-11 position, DCMA Eastern Region, Woburn, Massachusetts; 14. On September 30, 2014, Complainant became aware that he was not referred for the GS-1910-12 position, DCMA Eastern Region, Linthicum, NY; 15. On August 22, 2014, Complainant became aware that he was not selected for the GS-1102-11 Contract Administrator position, DCMA Eastern Region, Northampton, MA; 16. On March 16, 2015, Complainant became aware that he was not selected for the GS-1910-13 position, DCMA Eastern Region, Chicopee, Massachusetts; 17. On April 8, 2015, Complainant became aware that he was not referred for the GS-1910-11 position, DCMA Western Region, San Diego, California; 18. On April 14, 2015, he became aware that he was not referred for the GS-1102-11 position, DCMA Eastern Region, Endicott, New York; 19. On April 14, 2015, Complainant became aware that he was not referred for the GS-1910-11 position, DCMA Western Region, San Diego, California; 20. On April 8, 2015, Complainant became aware that he was not referred for the GS-1910-12 position, DCMA Special Programs, Syracuse, New York; 21. On June 24, 2015, Complainant became aware that he was not referred for the GS-1102-11 positon, DCMA Palmdale, California; 22. On June 18, 2015, Complainant became aware that he was not selected for the GS-1102-11 position. At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected him to the alleged sex, religion, age and reprisal discrimination. CONTENTIONS ON APPEAL Complainant offers arguments for four of the non-selections at issue in this complaint. Regarding non-selection to the Contract Specialist position in Milwaukee, Wisconsin, Complainant contends that officials based their decision on his prior EEO activity as evinced by comments. Regarding non-selection to the Industrial Specialist position in Pittsfield, Massachusetts, Complainant maintains that the selectee did not meet the minimum qualifications for the position. Regarding non-selection to the Quality Assurance Specialist position in Herzliya, Israel, Complainant contends that he was erroneously not referred to the selecting officials because the Human Resources department failed to recognize his experience. Finally, Complainant contends that he was informally offered the Contract Administrator position, but the Agency did not follow through with the application after management discovered his EEO activity. The Agency contends that the FAD correctly found that Complainant was not subjected to discrimination. The Agency contends, that among other things, management officials responsible for the non-selections did not know of Complainant's protected classes or activity. Regarding the non-referrals, the Agency pointed out that Human Resource officials screened out Complainant's applications because he did not substantiate his experience. Regarding allegation no. 2, non-selection to the Contract Specialist position in Milwaukee, Wisconsin, the Agency contends that the record demonstrates that Complainant's EEO activity did not play any role in the decision not to select him. ANALYSIS AND FINDINGS The question being analyzed is whether Complainant proved by a preponderance of the evidence that he was subjected to discrimination based on reprisal, age, sex and religion. I. Non-Selection to the Contract Administrator Position in Milwaukee, Wisconsin The Agency concluded that Complainant did not prove by a preponderance of the evidence that he was subjected to reprisal discrimination when he was not selected to the Contract Administrator position in Milwaukee, Wisconsin. Mixed motive cases are those where there is evidence that discrimination was one of multiple motivating factors for an employment action, i.e., in which the agency acted on the bases of both lawful and unlawful reasons. See EEOC Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, No. 915.002 (rev. Jan. 16, 2009). "Once a complainant demonstrates that discrimination was a motivating factor in the agency's actions, it is the agency's burden to demonstrate by clear and convincing evidence that it would have taken the same action even if it had not considered the discriminatory factor. If the agency is able to make this demonstration, the complainant is not entitled to personal relief, i.e., damages, reinstatement, back pay, but may be entitled to declaratory relief, attorney's fees or costs." See Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). Clear and convincing evidence is evidence which will, at a minimum, result in a "firm belief or conviction" as to the matter at issue. Myers v. United States Postal Service, Appeal No. 01930065 (May 26, 1994) (citing, Godsey v. Department of the Treasury (U.S. Customs Service), EEOC Request No. 05910040 (March 12, 1991), quoting, Black's Law Dictionary, 5th edition (1979), p. 227)). "Direct evidence of discrimination is defined as evidence which if believed, 'will prove the particular fact in question without reliance upon inference or presumption...'" Johnson v. Dep't of the Army, EEOC Appeal No. 01903383 (Jan. 8, 1991); Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). The Agency gathered a panel to screen and conduct interviews of candidates for the Contract Administrator position, DCMA Central Region in Milwaukee, Wisconsin. After Complainant's interview, but before the panel solidified the rankings, S2, a panel member, performed an internet search of Complainant's name and reported to others on the panel that Complainant had engaged in prior EEO activity with the Department of the Army. S2 stated that he shared with other panel members that Complainant was a "high risk" candidate in that he may have another chance at a complaint. ROI, p. ROI, p. 1751. S2 stated that it is possible that the information regarding Complainant's EEO activity influenced the rankings and the panel's decision not to recommend Complainant for hire. ROI, p. 1751. Another panel member stated that he was concerned about Complainant's ability to work in a team setting, which was based on information from S2 regarding Complainant's previous work history. ROI, p. 1731. S2 admitted that he took into account Complainant's EEO activity in his decision not to recommend Complainant, and stated that the other panelists may have been influenced as well, therefore, this constitutes direct evidence that an impermissible factor was taken into account during the hiring process. See, e.g., Johnson v. Dep't of the Army, EEOC Appeal No. 01903383 (Jan. 8, 1991) (finding direct evidence of reprisal discrimination in non-selection where panel member stated that Complainant was not a "team player" and another panel member stated that he didn't "look kindly" on Complainant's EEO activity). However, the record reveals that there were other factors that contributed to Complainant's non-selection, which included the quality of his interview and the fact that the selecting official did not think that any of the candidates were of particularly high quality. ROI, p. 1712. One panelist testified that while Complainant's experience was good, his interview did not place him as one of the top three candidates. For example, the panelist stated that Complainant did not provide "answers as concisely as he could have." ROI, p. 1737. The panelist stated that Complainant wanted to tell them about specific experiences rather than answers to the questions. ROI, p. 1737. Additionally, the panelist stated that other applicants had better resumes and interviewed better. ROI, p. 1737. The final panel recommendations noted that the individual ranking first interviewed extremely well, and had contracting experience with the Department of Defense. ROI, p. 1730. Complainant's qualifications were not measurably superior to the other candidates based on the information provided, and no candidates were selected, even the ones ranked higher than Complainant by the panel. This information established by clear and convincing evidence that Complainant would not have been selected even absent discrimination. See, e.g., Sanders v. Dep't of the Army, EEOC Appeal No. 01910649 (Feb. 27, 1991) (finding that Agency established by clear and convincing evidence that the complainant would not have been selected due to the qualifications of the selectee in comparison to the complainant's qualifications). Therefore, Complainant proved by a preponderance of the evidence that he was subjected to reprisal discrimination during the selection process for the Contract Administrator position.2 However, the record contained clear and convincing evidence that Complainant would not have been selected despite the discrimination. II. Other Non-Selections The Agency found that Complainant was not subjected to reprisal, age, sex or religious discrimination on his other non-selection claims. Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The Agency stated legitimate, nondiscriminatory, reasons for the other non-selections. For example, regarding the Industrial Specialist position in Pittsfield, Massachusetts, the selecting official stated that Complainant was not selected because he lacked "in plant experience" and his "degree was not related to the position's function." ROI, p. 10. Regarding not being referred for the Quality Assurance Specialist position in Herzliya, Israel, officials in Human Resources discovered that they made an administrative error in deeming that Complainant did not meet the requirements of the position. Complainant did not prove that the Agency's legitimate, nondiscriminatory, reasons were pretext, and there is insufficient evidence to conclude that the other non-selections and non-referrals were because of unlawful discrimination. Therefore, Complainant did not prove by a preponderance of the evidence that he was subjected to sex, religion, age and reprisal discrimination on the remainder of his 21 non-selections. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD which found that Complainant was not subjected to sex, religion, age and reprisal discrimination is AFFIRMED in part and REVERSED in part. The Agency's decision that Complainant was not subjected to reprisal discrimination when he was not selected for the Contract Administrator (GS-1150-11) position in Milwaukee, Wisconsin is REVERSED, and the complaint is REMANDED for compliance with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ORDERED to take the following actions: 1. Provide 8 hours of in-person or interactive training to the responsible management officials-- the panel members and the selecting official, on an employer's obligation not to engage in reprisal discrimination, and an employer's obligation not to engage in discrimination during the hiring process; 2. Consider taking appropriate disciplinary action against the panel members and selecting 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 any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s); 3. Post at the, DCMA Central Region, Milwaukee, Wisconsin, copies of the notice discussed below. The Agency shall provide a report of its compliance with this Order to the Compliance Officer referenced below. POSTING ORDER (G0617) The Agency is ordered to post at the DCMA Central Region in Milwaukee, Wisconsin, 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 (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. 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 6-19-18 __________________ 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 Complainant did not demonstrate that he was subjected to discrimination on any other protected basis for the Contract Administrator position based in Milwaukee. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2016-0925 11 0120160925