United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant's Motion for
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
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.
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
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."
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.
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.
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.
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.
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
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
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.
August 2011, Plaintiff applied for job announcement No.
AN520024, IT Project Manager GS-2210-14, on
USAJOBS.gov. 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
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.
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