Complainant,v.Chuck Hagel, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

May 15, 2013

0120120502 (E.E.O.C. May. 15, 2013)

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

,
Complainant,

v.

Chuck Hagel,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120120502

Hearing No. 570-2010-01046X

Agency No. DIA-2010-00003

DECISION

Complainant filed an appeal from the Agency’s final order dated October 26, 2011, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, Complainant alleged discrimination based on sex (male) and age (over 40)
when on October 11, 2009, he learned that he was not selected for the Lead Security Specialist
position, Vacancy Announcement Number: S09-025518-01-VMR. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On September 30, 2011, the AJ issued a decision without holding
a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

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
0120120502

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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. 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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period at issue, Complainant
was employed as a Security Officer, IA-0080-B03, in the Agency’s Directorate for Mission
Services, Counterintelligence and Security Office, DIA Police Force. The AJ noted that
Complainant applied for the Lead Security Officer position at issue. Three applicants,
including Complainant, were referred to the Selecting Official (SO) for consideration by
Human Capital. The SO interviewed Complainant and two candidates and asked them the
same questions. After the interview, the SO selected the selectee, a Security Specialist, for the
position at issue.

Complainant claimed that he was the most qualified candidate for the position at issue. Also,
he claimed that he recruited and trained the selectee. However, the SO stated that he selected
the selectee because she was superior to Complainant in initiative and experience.
Specifically, indicated the SO, the selectee had experience in physical security and experience
as both a police officer and contract guard prior to her employment with the Agency. Also,
stated the SO, the selectee previously achieved the rank of Captain at her previous place of
employment, supervised contract guards, and was the lead for security at her site. The SO
further indicated that the selectee possessed phenomenal customer service skills which were a
very important element for the position at issue and he received a lot of good feedback for her
from the workforce. The SO stated that Complainant’s customer service skills were not on the
level as the selectee in that customers would often contact him to get updates on the fulfillment
of their request.

After a review of the evidence in the record, the AJ determined and we agree that Complainant
failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting him for the
position. Furthermore, we find that Complainant failed to show that his qualifications for the
position were plainly superior to the selectee’s qualifications or that the Agency’s action was
motivated by discrimination. See Wasser v. Department of Labor, EEOC Request No.
05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has failed
to show that the Agency’s action was motivated by discrimination as he alleged.
0120120502

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CONCLUSION

Accordingly, the Agency’s final order 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
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.
0120120502

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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

May 15, 2013
Date