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Mayo v. Smith

United States District Court, E.D. Virginia, Alexandria Division

May 17, 2016

PAUL MAYO, Plaintiff,
GAYLE E. SMITH, Administrator U.S. Agency for International Development, Defendant.



         THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment.

         This is an employment discrimination case, whereby the Plaintiff alleges discrimination, harassment, and reprisal in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; the Rehabilitation Act, 29 U.S.C. § § 791 et seq.; the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq.; and the Veterans Employment Opportunities Act ("VEOA"), 5 U.S.C. § 3330a et seq.

         In 2010, when Plaintiff was sixty-seven year old, he applied for the position of Information Technology Specialist GS-2210-12, with the U.S. Agency for International Development's ("USAID") Bureau for Management, Office of the Chief Information Officer ("M/CIO"). Plaintiff was telephonically interviewed by Jay Mahanand, then the Deputy CIO, and Patricia Krisotobek, head of the M/CIO Project Management Branch. The interview lasted approximately two hours and Plaintiff's military background, "entire history of working information technology, " and his "life's story'' were discussed. Plaintiff shared that he has a hearing disability and has difficulty hearing "conference calls in a big room." Accordingly, during the interview, Mahanand and Kristobek repositioned the telephone to accommodate Plaintiff's hearing. Plaintiff was offered the position, and he began his employment with USAID on February 28, 2011.

         Section 508 of the Rehabilitation Act requires that federal agencies ensure that their electronic and information technology ("EIT") be comparably accessible to people with disabilities. In 2010, then CIO Jerry Horton became concerned with inquiries regarding USAID's Section 508 compliance, because the individual who answered such inquiries prior had retired. In order to prevent the role from slipping through the cracks again, in 2011, M/CIO Chief Information Security Officer and Chief Privacy Officer, William Morgan, volunteered to include the Section 508 initiative within his branch.

         In or about June, 2011, Morgan, now USAID's Section 508 "Compliance Coordinator, " became Plaintiff's supervisor, and shortly thereafter assigned Plaintiff as the USAID Section 508 Compliance "Point of Contact" ("POC"). Plaintiff and Morgan met several times to discuss Section 508, and agreed to coordinate USAID's reporting, training, policies, and acquisitions. As POC, Plaintiff responded to inquiries concerning the "what, when, and why of Section 508, " but otherwise considered himself as having "no responsibilities."

         In or about mid-August 2011, Jeffrey Anouilh, M/CIO Deputy CIO, approached Plaintiff and informed him that M/CIO had training funds it needed to obligate and expend before the end of the Fiscal Year. Plaintiff identified training he desired to take, including three outside courses, each of which cost over $2, 200.00. On August 18, 2011, Plaintiff and Morgan completed an "Individual Development Plan" ("IDP") which listed these courses. The IDP itself did not obligate M/CIO funds to be expended on these courses, and additional steps were necessary before the courses could be formally approved and attended. Nevertheless, Plaintiff attended one of these trainings, although M/CIO had neither paid, nor committed to pay, for the course.

         In mid-October 2011, Morgan, Anouilh, and Stephen Polkinghorn discovered Plaintiff's lapse. Because M/CIO had obligated funds to pay for Plaintiff's second requested training, Morgan instructed Polkinghorn to use those funds to retroactively pay for the course already taken. Due to insufficient departmental funds, Plaintiff was not permitted to take either of the other courses.

         Shortly after he started with USAID, Plaintiff began seeking promotions within M/CIO, none of which involved Section 508. There are many ways that an agency fills its vacancies. See 5 C.F.R. § 330.102. USAID, however, has an Interagency Delegated Examining Agreement with the Office of Personnel Management ("OPM"), which means that 0PM has delegated to USAID the authority to conduct competitive examinations for positions at USAID.

         When USAID advertises a given vacancy, it will typically post several related "listings, " each one stating a specific area of consideration. As relevant here, for example, a single vacancy may be posted simultaneously under (1) a "Delegated Examining" ("DE") announcement, open to all U.S. citizens; (2) a "Merit Promotion" ("MP") announcement, which is open only to "status eligible" candidates (meaning candidates who are current or former federal employees who hold or held non-temporary appointments in the competitive service); and (3) a "Non-Competitive" announcement, which is likewise open to current or former federal employees, with the distinction that such employees are already at the grade carried by the vacancy.

         Before announcing a vacancy, the selecting official will work with staff in USAID's Human Resources ("HR") Office to develop a job-related occupational questionnaire, which allows the applicant to self-assess his qualifications for the position. Based on an applicant's self-evaluated answers, USAID's web-based application for processing and evaluating applications, Monster, will assign the applicant a score.

         For DE openings, USAID employs "category rating, " by which applicants who meet the requirements for the position are placed into one of three quality categories: gold (90-100 points); silver (80- 89.99); and bronze (70-79.99 points). Generally, only candidates in the "gold" category are placed on the DE "referral list, " which is the list of qualified candidates that is forwarded to the selecting official for consideration. Merit Promotion and Non-Competitive vacancies follow a similar, but distinct, process. Monster likewise generates MP and NC "referral lists, " but employs a "natural break" as the "cut-off" score. This break is often set at 90 points.

         Although USAID conducts its own recruitment and staffing, from July 14, 2011 to September 30, 2012, OPM assisted USAID with certain aspects of the process because USAID was transitioning to the Monster application process.

         In August 2011, Plaintiff applied for job announcement No. AN520024, IT Project Manager GS-2210-14, on The position required a minimum of one year "specialized experience" as a project manager "managing large, complex, enterprise level IT projects." Kristobek served as the selecting official for AN520024, and was assisted by subject matter expert Sandy Muldoon Kunz. Kristobek reviewed Plaintiff's application and determined he had no experience as a project manager; rather, he had only supported project managers in their work. Further, Kristobek correctly understood Plaintiff never undertook any continuing education after earning his project manager certification in 1994. On September 12, 2011, Kunz emailed USAID Human Resources Specialist Linda Wilson for guidance on the appropriate use of the three employment eligible certification lists provided by OPM for AN520024. Although Plaintiff appeared on the DE and the non-competitive list, Wilson informed Kunz she was not required to interview Plaintiff.

         Kristobek ultimately selected Wayne Driver and Barry Richardson from the OPM merit promotion list, and Nestor Bonilla from the OPM DE list, for this position. Driver was an IT professional with federal experience as project manager, Richardson was a veteran with more than five years' experience as a senior IT project manager, and Bonilla was a veteran with experience as an IT project manager.

         At his deposition, Plaintiff testified that he had no basis to believe that he was better qualified for the position than the persons who were selected, that he had "no clue" about why he was not himself selected, and that he did not believe that his Section 508 activities "affected ...

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