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

Equal Employment Opportunity Commission

Mar 6, 2014

0120130215 (E.E.O.C. Mar. 6, 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. 0120130215

Hearing No. 480-2012-00593X

Agency No. ARUIJONG10OCT04621

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 a Housing
Management Specialist, GS-11, at the Agency’s US Army Garrison, Red Cloud in Yongsan,
Korea. Complainant sought counseling and subsequently filed a formal complaint.

Complainant alleged discrimination on the bases of sex (male), race (Black), and national
origin (African-American) when on October 4, 2010, Complainant became aware that he had
not been selected for the position of Housing Manager, GS-1173-12, Vacancy Announcement
Number KOFZ10405885, located in Housing Division, Directorate of Public Works, U.S.
Army Garrison Red Cloud, Tongduchon, Korea.

At the conclusion of the investigation, Complainant received a copy of the investigative report.
Additionally, 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 initially requested a hearing before an EEOC Administrative Judge (AJ).
Complainant withdrew his request for a hearing by letter dated May 24, 2012. On
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June 28, 2012, an AJ dismissed Complainant’s hearing request. On appeal, Complainant does
not challenge the AJ’s dismissal of the hearing request and we find no reason to alter the AJ’s
action.

On September 11, 2012, the Agency issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut. Thereafter,
Complainant filed the instant appeal.

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 EEOC Management Directive 110, Chapter 9, § VI.A. November
9, 1999) (explaining that 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”).

Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. The Supervisor Housing Manager (Manager) stated that she selected the selectee
because she was the best qualified because she actually worked as the Housing Services Officer
at Fort Bliss, which is a large installation. The Manager said that the selectee had over 50
housing courses, which set her apart from any of the other applicants. The Manager stated that
the selectee had a Bachelor’s Degree and was working on a Master’s Degree. Therefore, the
selectee had both experience and training. The Manager acknowledged that Complainant had a
strong resume and that the rating scores were close, but that the selectee was the superior
applicant based on her experience, training, and education. Complainant provides no evidence
to show he was a superior candidate to the selectee and no persuasive evidence to cast any
doubt on the Agency’s reasons for the selection decision.

After a careful review of the record and contentions on appeal, the Commission finds that
Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for
the selection decision. Additionally, Complainant failed to show that his qualifications for the
Housing Manager position were plainly superior to the selectee’s qualifications or that the
Agency’s action was motivated by discrimination. Moreover, the Commission finds that
Complainant failed to show by a preponderance of the evidence that he was subjected to
discrimination on the bases of sex, race, or national origin.

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

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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.

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
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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
March 6, 2014