Hershel B.,1 Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 16, 2017

0120141095 (E.E.O.C. Feb. 16, 2017)

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

Hershel B.,1
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120141095

Agency No. ARCEME11MAY02237

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 5, 2013, final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
General Engineer within the Middle East District Office of the Corps of Engineers in Baghdad,
Iraq. On July 4, 2011, Complainant filed an EEO complaint in which he alleged that his
Supervisor discriminated against him on the basis of race (African-American) by denying his
request for a relocation bonus on December 19, 2010.2

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.
2 Complainant’s complaint was initially dismissed for untimely EEO Counselor contact, under
29 C.F.R. § 1614.107(a)(2). Complainant appealed the dismissal in EEOC Appeal No.
0120121242 (Jan. 18, 2013). The Commission partially affirmed the Agency dismissal as to
two other claims, but reversed the agency and remanded for investigation the claim at issue in
the instant appeal.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

Complainant averred that in September 2010, his Supervisor offered him a position as a
Construction Manager working on personal service contracts in the Baghdad Office. He
further stated that the Supervisor informed him that he would not get a relocation bonus, to
which he believed he was entitled, and that the Supervisor did not give a reason as to why he
would not be given the relocation bonus. IR 167.

A policy memorandum on relocation incentives dated March 17, 2009, stated that for second
assignments such as the one for which Complainant had applied, three requirements had to be
satisfied. First, the employee’s performance rating had to be at the level of at least fully
successful. Second, the employee was required to return to his home district and remain there
for at least one full pay period, known as the “interim pay period.” Third, the employee had
to provide evidence that he had taken up residence in his home district during the interim pay
period. IR 143-44, 172.

Complainant’s Supervisor averred that he was unaware that Complainant had been denied a
relocation bonus until May 2011, when Complainant mentioned it to the Supervisor during the
latter’s visit to the facility where Complainant worked. He stated that he checked with a
Human Resources Specialist, who told him that Complainant had entered into a relocation
agreement on June 20, 2010, but on December 19, 2010, Complainant entered into a
subsequent agreement not to relocate but to extend his tour. Email traffic between
Complainant, the Supervisor, and the HR Specialist indicates that Complainant had been
contemplating a tour extension, not a relocation. IR 158-59, 164-65, 169, 171, 173.

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. (Aug. 5, 2015) (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”).

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
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those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that his Supervisor had denied his
relocation bonus out of unlawful consideration of his race. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as
this, Complainant can establish motive by presenting evidence tending to show that the
Supervisor’s reason for denying his relocation bonus was a pretext, i.e., not the real reason but
rather a cover for race discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515
(1993).

When asked by the investigator why he believed that his race was a motivating factor in his
failure to obtain a relocation bonus, Complainant responded with two assertions. First,
Complainant averred that in practice, relocations occurred only on paper and that no one
actually relocated physically. IR 167-68. This assertion was contradicted by the HR
Specialist, who averred that a physical return to the home district was required as a condition
of eligibility for the relocation bonus. IR 172. Second, Complainant stated, “As everyone
else received the bonus and my performance had always been excellent, the only reason I can
think of for this disparate treatment is my race.” IR 168.

Beyond these assertions, however, Complainant has not submitted any sworn statements from
other witnesses or documents that contradict the explanation provided by his Supervisor and
confirmed by the HR Specialist. He has likewise not presented any evidence which calls the
veracity of these witnesses into question. He even acknowledged that he subsequently received
a relocation bonus in January 2012, after he had submitted the paperwork documenting his
relocation. IR 168, 173, 196-98. We therefore agree with the Agency that Complainant failed
to establish the existence of a racially discriminatory motive on the part of Complainant’s
Supervisor or any other official in connection with Complainant’s failure to obtain a relocation
bonus in December of 2010.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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 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. The requests 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 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. Such requests do not alter the
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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

February 16, 2017
Date