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

Equal Employment Opportunity Commission

May 13, 2015

01-2013-2773-0500 (E.E.O.C. May. 13, 2015)

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. 0120132773

Agency No. ARCEWALLA11AUG03555

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated June 20, 2013,
finding no discrimination with regard to his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND
In his complaint, dated September 10, 2011, Complainant, an applicant for employment at the
Agency, alleged discrimination based on race (Black), disability, and age (over 40) when on
August 3, 2011, he learned that he was not referred for the term position of GS-0085-05,
Security Guard at the Army Corps of Engineers Walla Walla District Ice Harbor Project. On
November 22, 2011, the Agency issued its final decision dismissing the complaint for failure to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Upon Complainant’s appeal, the
Commission, in EEOC Appeal No. 0120120700 (November 13, 2012), reversed the Agency’s
decision and remanded the case back to the Agency for further processing. Accordingly, the
Agency accepted the complaint further processing. Upon completion of the investigation of the
complaint, Complainant requested a final Agency decision. The Agency thus issued its final
Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut.

0120132773

2

ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614

, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).
After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The Agency’s Human Resources Specialist (HRS)
indicated that on April 27, 2011, she attended a Veteran’s Career Fair in Pasco, Washington,
in order to recruit to fill a term Security Guard position pursuant to the noncompetitive
Veteran’s Recruitment Authority (VRA) hiring authority. The HRS indicated that during the
Fair, she spoke with a number of individuals, including Complainant, who expressed interest
in the position at issue and she explained to them the eligibility requirements for the position
and she asked for copies of resumes and DD-214 Forms (concerning military service).
Complainant submitted both documents to her. The HRS stated that she reviewed
Complainant’s resume and DD-214 Form and determined that he did not meet the VRA
eligibility categories since he was not a disabled veteran, a veteran who served on active duty
or participated in US military operation, or a recently separated veteran. Thus, stated the
HRS, Complainant was not referred to the selecting official for the position at issue.

In addition, the HRS stated that thereafter, Complainant called her and she then informed him
of his ineligibility of the VRA. The HRS indicated that at that time, Complainant informed
her, for the first time, he was a former federal employee and eligible for reinstatement. The
HRS stated that she then asked him to submit his Standard Form 50 to confirm his
reinstatement eligibility and she would then submit his resume to the selecting official for the
position at issue. The Agency stated that in order to be eligible for reinstatement, the applicant
must have served a career or career conditional appointment. The Agency indicated that
Complainant provided a letter which stated that he held an excepted appointment, not a career
or career conditional appointment. Complainant does not contest this. The Agency stated that
an individual was selected noncompetitively for the position at issue effective August 29, 2011,
under the VRA hiring authority.

We do not address in this decision whether Complainant is a qualified individual with a
disability. We find that Complainant failed to show that he was treated less favorably than a
similarly situated employee under similar circumstances. Based on the foregoing, we find that
Complainant failed to show that the Agency’s action was motivated by discrimination as he
alleged.
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CONCLUSION
Accordingly, the Agency’s final 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
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.
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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

Date
May 13, 2015