Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 7, 2014

0120121272 (E.E.O.C. May. 7, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120121272

Hearing No. 560-2010-00238X

Agency No. ARSILL09AUG03703

DECISION
Complainant filed an appeal with this Commission concerning his complaint of unlawful
employment discrimination. For the reasons set forth, we AFFIRM the Agency’s decision,
finding no discrimination.

BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as the Chief of
Logistics (Supply) Branch, as a Supply Management Specialist, YA-2003-02, under the
Agency’s Operations Division, Directorate of Training and Doctrine (DOTD) in Fort Sill,
Oklahoma. Complainant sought counseling and subsequently filed a formal complaint.

Complainant alleged discrimination on the bases of race (African-American), sex (male), and
age (over 40) when he was not afforded equivalent staff, training opportunities, or salary
increases as his peer, specifically when:

1. Other divisions within the Operations Division have a full staff, however, the Logistics
Branch has been without a full staff since 2005.
2. Other employees within the Operations Division have had an opportunity to receive
training, but because of a lack of staff within the Logistics Branch, Complainant was
denied this opportunity.
3. On August 14, 2009, Complainant became aware that another supervisor within the
Directorate of Training and Doctrine Operations Division had been promoted, as had
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other employees. Since 2005, Complainant’s supervisor has been promising him a
promotion but, due to funding restrictions, it has yet to happen.

At the conclusion of the investigation, Complainant received a copy of the investigative report.
The Agency informed Complainant of his right to request a hearing before an EEOC
Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency.

Complainant requested a hearing before an AJ. Following a hearing, the AJ issued a decision
on November 21, 2011, finding that Complainant had not been discriminated against.
Specifically, the AJ found that the Agency presented legitimate, nondiscriminatory reasons for
its actions, which Complainant failed to rebut.

On December 20, 2011, the Agency, fully implementing the AJ’s decision, issued a decision
finding no discrimination. Thereafter, Complainant filed the instant appeal

On appeal, the Agency argues that the understaffing within the Logistics Division was not the
result of discrimination, but was the result of Base Realignment and Closure (BRAC) issues,
deployments, and voluntary departures by employees. The Agency contended that
Complainant could not have been discriminated when he was denied training opportunities
because it never happened. The Agency asserts that it was untrue that Complainant never
received any discretionary awards. The Agency states that Complainant was never denied a
promotion. The Agency stated that Complainant had a “meteoric rise” through the General
Schedule (GS) system. The Supervisor and Deputy Director attempted to get Complainant’s
position upgraded sooner; however, the paperwork was never approved.

ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. Regarding claim 1, the Supervisor stated that there were staffing issues in the Logistics
Department, including BRAC issues, deployments, and voluntary departures by employees.
With respect to claim 2, Complainant admitted that he did not request specific training nor was
he denied specific training other than the Leadership Development Course in 2006. The AJ
found this 2006 training claim, even if part of the complaint, was untimely raised with an EEO
Counselor. The AJ found that even if it was timely raised there was no discrimination because
Complainant failed to show he was eligible for the training or that similarly situated employees
were treated differently.
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Regarding claim 3, the Supervisor and the Deputy Director stated that they were trying to
obtain an upgrade for Complainant’s position and were unable to get the paperwork approved.
The record revealed that Complainant received salary increases when he was promoted over a
twenty-four month period, going from a GS-4 which he applied for and was hired into in
February 2005, to a GS-7 then to a GS-9, in February 2007. The record also revealed that
Complainant received cash and incentive awards on par with his contemporaries, just not the
type of awards (what he called discretionary) he believed he was entitled to. Complainant
admitted that he received 16 different awards. Moreover, the Agency noted that once
Complainant was converted to the National Security Personnel System (NSPS), Complainant
was not entitled to Quality Step Increases.

The Commission finds that Complainant failed to rebut the Agency's articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown that any similarly
situated individual was treated differently. The Commission finds that Complainant has failed
to show by a preponderance of the evidence that he was subjected to discrimination on the
bases of race, sex, or age. Moreover, the Commission finds that the AJ’s decision is
supported by substantial evidence in the record.

CONCLUSION
The Agency’s decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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
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of the expiration of the applicable filing period. See

29 C.F.R. § 1614.604. 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 7, 2014