Fitten v. McCarthy
MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 2/17/2021. (dest, )(copy mailed by LMB chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
RYAN D. MCCARTHY,Secretary ofthe Army,
Before the Court are Motions to Dismiss filed by defendant Ryan D. McCarthy, Secretary
ofthe Army("Army" or "defendant"),to which pro se plaintiff Steven M. Fitten ("Fitten" or
"plaintiff') has filed an opposition which includes a Motion to Amend Complaint with Attached
Proposed Amended Complaint. The motions have been fully briefed. Finding that oral argument
would not assist the decisional process, the motions will be resolved on the materials filed by the
parties. Those materials include the EEOC Final Agency Decisions, which plaintiff attached to
his original Complaint. For the reasons discussed below, plaintiffs Motion to Amend Complaint
and defendant's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) will be
denied, defendant's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) will be
granted, and judgment will be entered in defendant's favor.
Plaintiff was bom in 1951 and has "Afncan, Hispanic and Native American ancestry."
[Dkt. No. 1] at ^ 5. In 1978, he was admitted to practice law,and he served on active duty with
the U.S. Coast Guard Judge Advocate General("JAG")Corp from 1989 through 1993, in
addition to serving as a reservist with the U.S. Air Force and Air National Guard from 1993
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through 2000. Plaintiff also had a 30-year career as a civilian employee ofthe federal
government, including positions with the Army,the U.S. Air Force, and the International
Boundary & Water Commission. Id His roles throughout his civilian career included contract
negotiator, contract specialist, cost/price analyst, and contracting officer, and he is certified by
the Defense Acquisition University as a Level III Acquisition Professional. Plaintiff retired in
March of2013, but alleges that he "has maintained his proficiency in the federal acquisition field
by teaching ... Defense Acquisition University Level II [f]ederal acquisition certification
courses." Id atf 6. He has also maintained his law license, working on pro bono matters and
taking continuing legal education courses. Id
Plaintiff alleges that "[s]ince 2012,[he] has applied for at least 16 vacancies with the 411
Contracting Support Brigade(CSB),formerly known as the U.S. Army Contracting Command
Korea(USACCK),without being interviewed or selected."[Dkt. No. 1] at 115. Only two of
those applications are relevant to this litigation, both for the same contract specialist position
with the 411 Contract Support Brigade based in Daegu, South Korea. Id
The selection process for this contract specialist position consisted ofthree stages.[Dkt.
No. 1-3] at 4. First, applications were reviewed and, iffound to be appropriate for the position
being advertised, they were referred for evaluation. At the second stage, known as the resume
rating stage, a panel of three reviewers gave numerical ratings to each resume based on how it
satisfied the rating criteria for the position. The top-rated candidates were referred for interviews
before a three-person interview panel which made the final recommendation to the ultimate
Plaintiff first applied for the contract specialist position in response to Vacancy ID
1880239("First Vacancy Announcement"), which was announced in December of 2016.[Dkt.
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No. 1] at H 15;[Dkt. No. 24-2]. His application was not initially referred for review to the resume
rating panel.[Dkt. No. 1] at H 15. On January 23, 2017,a government hiring freeze was
announced and the hiring process for that position stopped.
at ^ 18. Plaintiff nevertheless filed
an EEC complaint on January 23,2017 based on defendant's failure to refer his application for
review. Id at K 16. There is no allegation in this record that any action was taken on this vacancy
after the hiring freeze was announced.
On June 29,2017,a new announcement, Vacancy ID 100210674("Second Vacancy
Announcement"), was issued and plaintiff again submitted an application, which was among the
37 applications referred to the resume rating panel.[Dkt. No. 1] at ^ 19;[Dkt. No. 1-3] at 3-4.
The resume rating panel for this vacancy consisted of Major Won Chung ("Chung"),the
Regional Contracting Office Chief; Anthony Dunaway ("Dunaway"), the Regional Contracting
Office Deputy Chief; and Kimberly Newman("Newman"), Contracting Officer and Team
Leader. This panel rated each ofthe applications that were referred for consideration on the basis
offive criteria: Education, Leadership Training, Contract Specialist Experience, Contracting
Officer Experience, and Awards. The panel assigned numerical point values for each ofthese
criteria based on the following guidelines:
The resume scoring criteria shows that Education had a score of 5 points for a
Master's Degree (non-business) and 10 points for a Master's Degree or higher
(business); 5 points for Leadership Training(SBLM,CGSC, OLE,CES Advance,
etc.[sic]; 5 points for 3-5 years of Contracting Officer experience and 10 points for
over 5 years of contracting officer experience (above SAT and within the last 15
years); 5 points for Contract Specialist Experience (3-5 years of Post, Camp,
Station/Installation experience) and 10 points for over 5 years of Post, Camp,
Station/Installation experience) within the past 15 years; and 5 points for Awards
above Commander level.
[Dkt. No. 1-3] at 4. All three review panelists gave plaintiff a score of 10 for Education,0 for
Leadership Training,0 for Contracting Officer Experience, and 0 for Awards. Two panelists
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(Dunaway and Newman)gave plaintiff a score of 10 for Contract Specialist Experience, but the
third panelist(Chung)gave him a 0 for this category. The disagreement between panelists
reflects an inconsistent application ofthe scoring criterion for Contract Specialist Experience,
which required that points only be given for work done within the last 15 years (candidates were
supposed to receive a score of5 ifthey had between 3 and 5 years ofrelevant experience within
the last 15 years, and a score of 10 for more than 5 years' experience in that same period). Id.
Plaintiff had served as a contract specialist between 1986 and 1995 (outside the 15-year
window), but as a contracts attorney from 2006-2008 (inside the 15-year window). Id. at 5.
Plaintiffs final resume score was 50, which was the total ofthe three 10s earned for
Education, and the two 10s awarded by Dunaway and Newman for Contract Specialist
Experience. Id at 4-5.' The resume rating panel considered 37 applications for the position, and
referred the ten top-rated applicants to the interview panel. The resume scores for the candidates
who were recommended for an interview ranged from 75 to 95.[Dkt. No. 1-3] at 4-5. Ofthe ten
candidates referred for an interview, three dropped out, leaving seven who were actually
interviewed. The candidate who was ultimately selected for the position was Daniel Shin
("Shin"), who had the highest combined score(196)of any candidate, after adding together his
resume review score(90)and his interview score (106).
Plaintiff filed an EEC complaint on April 12, 2018, after he learned that Shin was
selected to fill the contract specialist vacancy. In his complaint, he alleged that"he was subjected
to discrimination based upon race (African-American, Hispanic and Native American), age (66;
bom, October 9,1951)and reprisal (prior EEC activity)."[Dkt. No. 1-3] at 1. That complaint did
'Even if Chung had given plaintiff a 10 for Contract Specialist Experience, his total score would
have been 60, which was still below the top-ten scoring applicants who were referred for an
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not include a claim of disability discrimination. Id On June 14,2019,the Army issued a Final
Agency Decision on plaintiffs EEC complaint, which found that plaintiff"was not subjected to
discrimination based upon the evidence in the case file." Id On September 26,2019, plaintiff
filed a lawsuit in the United States District Court for the District of Hawaii, alleging that he was
not hired for several different vacant positions in Hawaii and South Korea because ofracial
discrimination in violation of Title VII(Count I), age discrimination in violation ofthe ADEA
(Count II), disability discrimination in violation ofthe Rehabilitation Act(Count IV), and
retaliation for engaging in activities protected by the forgoing statutes(Count III). [Dkt. No. 1].
The district court in Hawaii entered an order that found that its district was not the proper venue
for the claims related to the South Korea positions, and transferred those claims to this district.
Defendant has moved to dismiss those claims, and plaintiff has moved to file an amended
complaint alleging the same four counts as were raised in the original Complaint but focusing on
the South Korea position.[Dkt. No. 30-12].
A. Motion to Amend
Federal Rule of Civil Procedure 15(a)(2) states that courts "should freely give leave" to
amend a pleading "when justice so requires." Leave to amend should only be denied when "the
amendment would be prejudicial to the opposing party, there has been bad faith on the part ofthe
moving party, or the amendment would be futile." Edwards v. Citv of Goldsboro. 178 F.3d 231,
242(4th Cir. 1999)(quoting Johnson v. Oroweat Foods Co.. 785 F.2d 503,509(4th Cir. 1986)).
Defendant argues that leave to amend would be futile, because the proposed amended complaint
"remains virtually identical to the relevant portions of his original complaint, and otherwise fails
to correct the numerous deficiencies in his first pleading."[Dkt. No. 31] at 12. Defendant's
futility argument is meritorious. Although the proposed amended complaint adds the additional
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allegations that the individual hired was ofa different race and was younger than plaintiff, which
are essential elements for the prima facie case for race and age discrimination, none of the
additional claims cure the significant defects in plaintiffs original Complaint. Because the
defendant's Motions to Dismiss clearly pointed out the pleading deficiencies in the original
Complaint, that plaintifffailed to correct all ofthem in his proposed amended complaint fully
supports the conclusion that leave to amend would be futile. Therefore, the Motion to Amend
will be denied.
B. Motions to Dismiss
1. Standard of Review
Federal Rule of Civil Procedure 12(b)(6)^ requires dismissal of a complaint when a
"plaintiffs allegations fail to state a claim upon which relief can be granted." Adams v.
NaphCare. Inc.. 244 F. Supp. 3d 546,548(E.D. Va. 2017). A complaint must be more than
speculative, and must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
Twomblv.550 U.S. 544, 555,570(2007)."[A] plaintiffs obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of
the elements ofa cause of action will not do." Id (internal quotation marks and citations
omitted). When considering a motion to dismiss, the court assumes that the facts alleged in the
complaint are true and resolves factual disputes in the plaintiffs favor, Robinson v. Am. Honda
Motor Co.. 551 F.3d 218,222(4th Cir. 2009); however, a court "is not bound by the complaint's
legal conclusions," conclusory allegations, or unwarranted inferences. Id A court may consider
^ Defendant has also filed an alternative Motion to Dismiss for lack ofjurisdiction under Rule
12(b)(1), because the "law is currently unsettled on whether failure to exhaust" employment
discrimination claims "by a plaintiff proceeding against a federal agency presents a jurisdictional
defect(Rule 12(b)(1)), or altematively is a failure to state a claim (Rule 12(b)(6))."[Dkt. No. 24]
at 13-14 n.6. Because the law is unsettled, the court will evaluate the issue under Rule 12(b)(6).
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"documents attached to the complaint or the motion to dismiss 'so long as they are integral to the
complaint and authentic.'" Kensington Volunteer Fire Dep't. Inc. v. Montgomery County. Md..
684 F.3d 462,467(4th Cir. 2012)(quoting Phillips v. Pitt Ctv. Memorial Hosp.. 572 F.3d 176,
180(4th Cir. 2009)). Plaintiff attached three exhibits to his original Complaint, including a copy
ofthe Department ofthe Army's final EEO decision related to his non-selection for the contract
specialist position. He also attached to his Opposition to defendant's Motions to Dismiss eleven
exhibits, including his declaration made under penalty of perjury, which had been submitted
during the EEO investigation. The Court has considered these documents, which are clearly
integral to the allegations in the Complaint and for which plaintiff has not raised any issue
Courts generally must "construe allegations in a pro se complaint liberally." Thomas v.
Salvation Armv So. Territorv. 841 F.3d 632,637(4th Cir. 2016). The justification for this liberal
construction requirement is that"a typical pro se plaintiff does not have legal training and is
unfamiliar with the legal system," Polidi v. Bannon.226 F. Supp. 3d 615,616 n.l (E.D. Va.
2016); however, where "the pro se plaintiff is a practicing or former attorney, courts have
declined to give liberal construction to the complaint." Id
2. Failure to Exhaust
A civil action filed by a plaintiff alleging employment discrimination by a federal
employer under Title VII,the ADEA,or the Rehabilitation Act is limited to those claims which
were exhausted at the administrative level. Claims which were not the subject ofan earlier EEO
complaint carmot be raised in a later judicial complaint, because doing so would "depriv[e] the
employer of adequate notice and resultin a failure to investigate by the responsible agency."
Evans v. Techs. Applications & Serv. Co.. 80 F.3d 954,963 (4th Cir. 1996). Once a federal
plaintiff receives a Final Agency Decision on an EEO complaint, he or she must either file an
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appeal with the EEOC within 30 days, or file a civil action in federal court within 90 days. 42
U.S.C. § 2000e-16(c). Defendant argues that all of plaintiffs claims related to the First Vacancy
Announcement are time-barred, because plaintiff failed to comply with the 90-day time period
for filing a complaint, and that plaintiffs Rehabilitation Act claim is barred because it was not
included in his EEO complaint.
Plaintiff responds that he filed an EEO complaint related to the First Vacancy
Announcement on January 23,2017, when the position was cancelled due to the hiring freeze.
[Dkt. No. 30-12] at ^ 8. According to plaintiff, his second EEO complaint—^which he filed in
2018 after learning that Shin had been awarded the contract specialist position—was "accepted
... as an amendment to the first action."[Dkt. No. 29] at 5. Under plaintiffs construction, the
2019 Final Agency Decision resolved both EEO complaints, meaning that his claims related to
both vacancy announcements were timely filed within 90 days ofthe 2019 decision.
No. 30-12] at
[Dkt. No. 30-12] at ^ 7("Final Agency Decisions(FAD)were requested,
rendered and served upon Plaintiff on 29 June 2019."). Although defendant has attached to its
Motions to Dismiss evidence which strongly supports its characterization ofa different
procedural record, at the dismissal stage a court must make all reasonable inferences in favor of
the plaintiff. Considering plaintiffs argument that he was permitted to amend his first EEO
complaint as well as the 2019 Final Agency Decision's mention of both the First and Second
Vacancy Announcements,the Court will assume for the purposes of deciding the Motions to
Dismiss that, with the exception of any disability discrimination claims, the claims relating to the
First Vacancy Announcement were timely filed.
Even making all inferences in plaintiffs favor, it is clear that plaintiffs Rehabilitation
Act claim (Count IV)has not been exhausted and must be dismissed. The 2019 Final Agency
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Decision—^which is the only agency action on which plaintiffs complaint could have been
timely based—addresses only claims of race and age discrimination, and reprisal for protected
activity.[Dkt. No. 1-3] at 1. There is also no mention of any disability in the decision's
background recitation. 14.In his Opposition, plaintiff argues that his disability claim is exhausted
because he requested that such a count be added by amendment and his request was denied,[Dkt.
No. 24] at 12; however, that allegation appears nowhere in either the original or the proposed
amended complaints, which instead falsely assert that the disability claim was included in
plaintiffs EEC complaints.
[Dkt. No. 30-12] at
7, 8. As an experienced attorney, plaintiff
should be aware that he cannot broaden the scope of his complaint through briefing. What is
more,this bare assertion in plaintiffs Opposition is contradicted by the 2019 Final Agency
Decision, which he attached to his Complaint and which does not address disability
discrimination or the Rehabilitation Act in any way.
Favetteville Invs. v. Commercial
Builders. Inc.. 936 F.2d 1462,1465 (4th Cir. 1991)("[I]n the event of conflict between the bare
allegations ofthe complaint and any exhibit attached ..., the exhibit prevails."). Because nothing
submitted by plaintiff shows that he included a disability claim in his EEO complaint. Count IV
will be dismissed.^
^ Even if plaintiff had exhausted this claim, in neither his original nor his proposed amended
complaint does he plead a nrima facie case of being disabled under the meaning ofthe
Rehabilitation Act, which protects employees from discrimination because of disabilities which
act as a "substantial limitation of a major life activity." Forris v. Bowen.794 F.2d 931,933-34
(4th Cir. 1986)(emphasis in original). Plaintiff claims that he is disabled because of a "handicap
that stem[s]from two heart surgical procedures performed in 2003 and 2004."[Dkt. No. 30-12]
at H 14; but he does not elaborate further on what this "handicap" entails or allege that two
surgical procedures from more than a decade ago substantially limited any major life activities.
Therefore, this Count will also be dismissed for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6).
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3. Failure to State a Claim
Counts I, II, and III allege racial discrimination, age discrimination, and retaliation,
respectively.[Dkt, No. 30-12] at 1|1[ 15-18. To plead that a decision not to hire an applicant was
motivated by racial discrimination in violation of Title VII, a plaintiff must allege that "(1) he is
a member of a protected group;(2)he applied for the position in question;(3)he was qualified
for the position; and(4) he was rejected for the position under circumstances giving rise to an
inference of unlawful discrimination." Brown v. McClean. 159 F.3d 898,902(4th Cir. 1998).
Similarly, to plead age discrimination in violation ofthe ADEA,a plaintiff must allege that "(1)
he is a member ofthe protected class, namely 'individuals who are at least 40 years of age,' 29
U.S.C. § 631(a);(2) he applied for and was qualified for the position;(3)he was rejected despite
his qualifications; and,(4)the position remained open or was filled by a substantially younger
person." Motlev v. Virginia. 3:16-cv-595, 2018 WL 1472491, at *4(E.D. Va. Mar. 26, 2018).
Finally, to plead retaliation, a plaintiff must allege(1)that he engaged in a protected activity;(2)
that he suffered an adverse employment action, in this case non-selection; and (3)that a causal
connection existed between the protected activity and the asserted adverse action. Laber v.
Harvev.438 F.3d 404,432(4th Cir. 2006).
For these claims of discrimination and retaliation to survive dismissal, it is not sufficient
for plaintiff to plead that he had a protected characteristic or had participated in a protected
activity and was not hired. Instead, he must plead facts that support a plausible claim that
defendant's failure to hire him was caused by the protected characteristic or activity. See e.g..
McClearv-Evans v. Maryland Dep't Transp.. State Highwav Admin.. 780 F.3d 582,583(4th Cir.
2015)(dismissing race discrimination claim where plaintiff"failed to include adequate factual
allegations to support a claim that the [employer] discriminated against her because she was
AfHcan American")(emphasis in original); E.E.O.C. v. Baltimore Countv. 747 F.3d 267,272
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(4th Cir. 2014)(holding that the ADEA "prohibits employers from refusing to hire, discharging,
or otherwise discriminating against any person who is at least 40 years of age 'because of the
person's age")(quoting 29 U.S.C. §§ 623(a)(1), 631(a)); Laber. 438 F.3d at 432(holding that
retaliation requires "a causal link"). Plaintiff cannot plausibly plead that discrimination or
retaliation was the reason he was not hired to fill the First Vacancy Announcement because, as
the Complaint alleges and the plaintiff concedes, that announcement was cancelled due to a
hiring freeze.[Dkt. No. 1] atf 18("A hiring freeze went into effect around January 23,2017 and
ended May 2,2017."). Although plaintiff argues that the Contract Support Brigade was exempt
from this hiring freeze, he does not allege that the office continued to hire for the contract
specialist position or any other positions. To the extent that plaintiff wants the Court to infer that
the defendant used the hiring freeze as a pretext for not hiring him, he would have to have
alleged some facts showing that the same Army officials actually continued to hire during that
time period. Such facts are not included in plaintiffs original Complaint, and after being put on
notice ofthis pleading defect in defendant's Motions to Dismiss, the proposed amended
complaint did not address it.
Plaintiff has also not plausibly pleaded that discrimination or retaliation caused his nonselection after the Second Vacancy Announcement re-advertised the position. Regarding his
retaliation claim, plaintiffs allegation of causation is undercut by the amount oftime that passed
between January 23,2017, when he claims he filed his initial EEO complaint, and August 2017,
when the decision was made to hire another candidate for the contract specialist position.[Dkt.
No. 1-3] at 6-7. S^ Perrv v. Kappos.489 F. App'x 637,643(4th Cir. 2012)(finding that an
"adverse employment decision" must "follow... protected activity 'very closely'" to establish
causation through temporal proximity)(quoting Clark Ctv. Sch. Dist. v. Breeden. 532 U.S. 268,
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273(2001)). The passage oftime is less decisive in this case than it otherwise might be,
considering that all activity involving filling the contract specialist position stopped when the
hiring freeze was announced and defendant did not hire plaintiff"at the first available
opportunity" after the freeze ended, Price v. Thompson. 380 F.3d 209, 213 (4th Cir. 2004);
however,the more than six-month-lapse between plaintiffs alleged protected activity and his
non-selection is still a factor that weighs against finding that he has properly pleaded causation
as to his retaliation claim.
The more serious problem with all three of plaintiffs discrimination claims is that he has
not plausibly alleged facts indicating that the three resume rating officials knew anything about
his protected characteristics or protected activity. Under both Title VII and the ADEA,an
allegation of causation is not plausible if it is not supported by allegations or reasonable
inferences that the decisionmakers for the employer were aware of the plaintiffs race, age, or
Holland v. Washington Homes. Inc.. 487 F.3d 208,218 (4th Cir. 2007)
("To prove a causal connection ... [t]he first thing [the employee] must be able to prove ... is
[the decisionmaker's] knowledge that he engaged in a protected activity."); Bandv v. Advance
Auto Parts. Inc.. 7:1 l-cv-365,2012 WL 6018741, at *7(W.D. Va. Nov. 29, 2012)("[A]ge
cannot have been the but-for cause of[the employee's] termination if[the decisionmaker] did not
know [the employee] and did not know his age.").
In plaintiffs sworn statement to EEO investigators, he was asked who he believed was
responsible for the alleged discrimination. He identified nine officials and former officials ofthe
411 Contract Support Brigade who were aware of his race, age, and prior EEO complaints:
Division Chief Frances Walker, Human Resources Specialist Kyong Mi Pak, Deputy Principal
Assistant Responsible for Contracting Daniel Cottrell, Director of Contracting Fidel Macan,
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former Deputy Principal Assistant Responsible for Contracting Michael Cooper,former
Contracting Support Brigade Commander David Ware,former Director of Contracting, Timothy
Powers; Agency Counsel Stephen L. Parker; and Michael Proc, whose position he does not
disclose.[Dkt. No. 29] at 17, 19; see also [Dkt. No. 1] at ^ 21. Ofthese nine individuals, only
two—Fidel Macan("Macan")and Daniel Cottrell ("Cottrell")—were involved in the hiring
process for the contract specialist position. According to the 2019 Final Agency Decision, Macan
"believes he was the selecting official for the position at issue," and Cottrell signed off on
questions to be asked at the interview phase and was included on the memorandum requesting
approval to hire Shin for the position. Dkt. No.[1-3] at 4, 7.
Even assuming that plaintiff has adequately alleged that Macan and Cottrell knew about
his protected characteristics and protected activity, and harbored discriminatory or retaliatory
animus against him,there are no allegations in either of plaintiffs complaints or any ofthe
exhibits he has filed which show or even suggest that Macan and Cottrell were involved in the
hiring process during the resume rating phase. This fact is critical, because plaintiffs application
never made it past that phase ofthe hiring process, which was conducted by three individuals,
none of whom were identified by plaintiff in his declaration or the Complaint as knowing about
his protected characteristics or activity. Moreover,two of those panelists—Chung and
Dunaway—submitted declarations during the EEO investigation in which they swore under the
penalty of perjury that they were not aware of plaintiffs race, age, or prior EEO activity when
they gave his resume a score that did not qualify him to proceed to the interview stage.[Dkt. No.
1-3] at 8.4
4 The 2019 Final Agency Decision does not reference a similar declaration from the third
panelist, Newman,but neither that decision nor the Complaint state that Newman was aware of
plaintiffs race, age, or prior EEO activity. Additionally, Newman was one ofthe two panelists
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The only allegation that plaintiff makes about the resume review panel is the claim in his
proposed amended complaint that "the selection panel members and managerial selecting
officialsintentionally manipulated score cards and score sheets for every vacancy Plaintiff
applied for, in order to reduce the number of points that would have certainly qualified Plaintiff
for an interview and eventually [sic] hiring."[Dkt. No. 30-12] at ^ 13. In his Opposition, plaintiff
explains that this alleged "manipulation" included the resume review panel's practice of only
giving credit for contract specialist experience within the last 15 years,[Dkt. No. 29] at 7;
however,the 2019 Final Agency Decision shows that any deviation from the scoring criteria by
the resume review panel actually benefitted plaintiff.
Favetteville Invs.. 936 F.2d at 1465
("[l]n the event of conflict between the bare allegations ofthe complaint and any exhibit attached
..., the exhibit prevails."). Even though plaintiffs last period of service as a contract specialist
was outside the 15-year window,two ofthe three panel members(Dunaway and Newman)gave
him credit for it anyway.[Dkt. No. 1-3] at 4-5. Nor would it have made any difference if all three
panel members had disregarded that criterion and given plaintiff credit for his experience outside
the 15-year window: even earning full marks in that category, his resume still would have earned
a score of60, 15 points lower than the next lowest candidate who was recommended for an
interview. Id at 10. In his Opposition, plaintiff also argues that he was not given "due point
credit" in various other categories including Education,^ Leadership Training, and Awards.[Dkt.
No. 29] at 7; however, neither the original nor the proposed amended complaints includes
allegations that would support a finding that plaintiff should have received these marks under the
who gave plaintiff a score of 10 for Contract Specialist Experience when rating his application,
even though his relevant experience was outside the 15-year window established by the scoring
^ Plaintiff actually received the full 10 points for Education from all three panelists.
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scoring system being used. In other words, plaintiff has not alleged that he had leadership
training or had received any awards that would have qualified under the scoring criteria.
Plaintiffs disagreement with the scoring criteria that were used is not sufficient to "giv[e] rise to
an inference of unlawful discrimination." Brown. 159 F.3d at 902.
Because plaintiff has failed to allege facts which create a plausible claim that defendant's
decision not to hire him for the contract specialist position at issue was motivated by his race,
age, or prior engagement in protected activity. Counts 1,11, and 111 will be dismissed.
For the reasons stated above, plaintiffs Motion to Amend and defendant's Motion to
Dismiss under Rule 12(b)(1) will be denied; defendant's Motion to Dismiss under Rule 12(b)(6)
will be granted; and judgment will be entered in favor of defendant by an Order to be issued with
this Memorandum Opinion.
Entered this 2*j^a.y of February,2021.
Leonie M. Brinkeira
United States District Judge
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