Shayne B.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 15, 2019

2019002364 (E.E.O.C. Nov. 15, 2019)

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

Shayne B.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019002364

Hearing No. 430-2017-00085X

Agency No. ARJACKSON15OCT03839

DECISION

On December 27, 2018, 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 29, 2018, final order 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Range Operations
Assistant, 0303, GS-7, at the Agency’s Directorate of Plans, Training, Mobilization, and Security
(DPTMS) in Fort Jackson, South Carolina.

On January 13, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and color (Black) when: (1)
on September 8, 2015, he became aware that the Agency’s management failed to complete a SF-
50 showing his detailed position, which caused him not to be considered eligible for the Training
Facilities Coordinator job announcement; and (2) when he was not given credit for a GS-09

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.
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detail that he served between May and August 2015 and a GS-11 detail that he served from
August 2015 until continuing.

The Agency accepted the complaint and conducted an investigation, which produced the
following pertinent facts:

In June 2015, Complainant, a GS-7 level Range Operations Assistant, applied for the Agency’s
advertised Training Facilities Coordinator position, which was a GS-11 position. The Agency
determined that he was not “not qualified” for the position because he did not have the requisite
time in grade, which was one year at a GS-9. However, Complainant believed that he met the
time in grade requirement for the position because, between 2009 and 2015, he performed
several detail assignments at the GS-9 and GS-11 levels, including a year as the Training
Facilities Coordinator, the GS-11 position at issue. He alleged that management failed to
document his details on an SF-50, Notification of Personnel Action, which caused him to be
deemed “not qualified” for the position and, therefore, not selected.

The vacancy announcement for the position at issue, Training Facilities Coordinator, indicates
that applicants who have held a GS position within the last 52 weeks must have 52 weeks of
Federal service at the GS-09 grade (or equivalent).

Agency records and correspondence between the Agency and Complainant establish that
Complainant was placed on multiple details or temporary assignments, including performing
duties at the GS-9 level and assigned to the Training Facility Coordinator position from March
2009 to March 2010, as alleged. Testimony from managers differed as to whether Complainant
performed the full scope of the GS-11 duties while detailed to the Training Facility Coordinator
position.

A Human Resources Specialist (HR) attested that, in order to meet the time in grade requirement
for the GS-11 position at issue, an applicant needed to have an SF-50 indicating that he or she
served in a GS-9 position for one year. HR confirmed there was no SF-50 for Complainant
indicating he met this requirement. HR explained that a detail is not a substitute for time-in-grade
and to meet a time-in-grade requirement, an applicant must have held a permanent position or a
temporary promotion for which he competed, at that grade level, for one year. HR explained that
a detail is not considered a permanent position. HR also explained that Complainant was not
qualified for the GS-11 level position at issue because he did not have the requisite time-in-grade
as a GS-9 level employee.

HR also explained that management can verbally detail an employee for up to 30 days, but after
that, they should submit a Request for Personnel Action, an SF-52, to process the detail.

A Labor Relations Specialist (LR) attested that when an employee is detailed to a position, a
detail does not generate an SF-50 unless the employee is temporarily promoted. There was no
SF-50 indicating Complainant had 52 weeks of experience at the GS-9 level and he was
disqualified on that basis.
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LR further explained that multiple detail periods cannot be added together to meet the time-in-
grade requirement. He further explained that, usually, an employee on detail does not perform
the full aspects of the job. If management wants an employee to perform the full scope of duty,
they can temporarily promote the employee for a period of time, not to exceed 180 days.

The Supervisory Range Control Specialist (Supervisor) attested that, during the relevant time
period, there was a vacant GS-9 position for the scheduling office and he spoke to the Director
about appointing Complainant to the position and “discrimination happened” when he brought it
to the Director’s attention. Although his testimony suggests the Director said or did something
discriminatory, Supervisor declined to further attest as to that alleged discrimination. That said,
the GS-9 vacancy subsequently was removed. The Director indicated he did not fill the position
because he had 30 overhires and wanted to pay a couple of overhires.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
After both parties submitted motions for a decision without a hearing, the AJ assigned to the case
issued a decision without a hearing on November 6, 2018. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

The instant appeal followed.

On appeal, Complainant expresses his displeasure and frustration at having performed duties that
are part of jobs at higher grade levels, without higher compensation or credit for time served. He
asserts that he performed his supervisors’ full duties while detailed to those positions and that
management failed to provide the proper documentation for his details and, in so doing, did not
follow OPM guidelines. He alleges that racism was the motivation his being denied the
promotion.

The Agency has not submitted a statement or brief in response.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249.
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The evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Complainant has alleged that the Agency treated him disparately when his details were not
properly recorded, and he was, consequently, deemed not qualified for the position of Training
Facilities Coordinator. A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant
to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of
Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency’s management explained that, while Complainant had served on
numerous details, including performing duties that were assigned to GS-9 or GS-11 employees,
he was not qualified for the GS-11 position at issue because he did not have the requisite time-in-
grade for the position, which was one-year at a GS-9 level.

Management explained that details cannot be combined to meet time-in-grade requirements and
are not a substitute for time-in-grade requirements.

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Complainant was a GS-7 level employee and neither he nor the record suggests that he served as
a GS-9 level employee in a permanent position or temporary promotion for which he competed,
as would meet the time-in-grade requirement for the GS-11 position at issue. Therefore, he was
not qualified for the position, with or without the proper documentation of his details.

With respect to documenting Complainant’s service on details, the Agency admitted during
discovery that the record shows its failure to fulfill HR duties, as related to properly documenting
Complainant’s service on details. The Agency also explained that the intent was to detail
Complainant to perform some duties, rather than the full performance, of the higher-graded
positions, as opposed to promoting him.

We recognize that Complainant and a supervisor have stated that they believed the Director was
discriminatory against Complainant, including with respect to not promoting him to a GS-9 level
position and failing to properly document his details. However, the Director indicated that he
decided to pay overhires rather than fill a vacant GS-9 position. And, while the proper HR
documents were not completed to document Complainant’s details, the Agency has
acknowledged this oversight as a failure to perform its duties. Although Complainant has alleged
discrimination with respect to the Agency’s actions, he has not established by a preponderance of
the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a
pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with
respect to these claims.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

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.

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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.

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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

November 15, 2019
Date