Ian C.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

2019001746 (E.E.O.C. Nov. 5, 2019)

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

Ian C.,1
Complainant,

v.

Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019001746

Agency No. ARYONGSAN12APR01803

DECISION

On November 13, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 24, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as an Information Technology (IT) Specialist,
GS-2210-11, at the Agency’s 201st Signal Company, 41st Signal Battalion, 1st Signal Brigade,
Area II-Network Enterprise Center, Customer Support facility in Yongsan, Korea.

On May 23, 2012, Complainant filed the instant formal complaint. Complainant claimed that he
was subjected to discrimination based on age (over 40) and in reprisal for prior EEO activity
when:

a. on April 3, 2012, he became aware he was not selected for the position of Lead
Information Technology Specialist, GS-2210-12;
b. on September 21, 2012, he was not recognized during the company’s awards
ceremony; and

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.
2019001746

2

c. on October 22, 2012, his request for a Top Secret (“TS”) Clearance was
denied/cancelled.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however,
subsequently withdrew the hearing request. The Agency issued the instant final decision on
October 24, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANAYLSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, 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 Construction 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 Texas Department
of Community 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 based on a prohibited reason. See St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

With regard to Complainant’s reprisal claim, he conceded that his present management was not
involved in his prior EEO activity and had not made any negative comments about filing EEO
complaints. However, he said that his second-level supervisor told him, in June 2011, to put his
problems behind him, which he believed was a reference to his prior EEO complaints.

2019001746

3
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

Regarding claim a, Complainant asserted that on April 3, 2012, he became aware he was not
selected for the position of Lead Information Technology Specialist, GS-2210-12.

The Chief of Area Information IT Support Center (year of birth 1953), also Complainant’s first
level supervisor, was the selecting official for the Lead IT Specialist position. After receiving
the referral list from the Civilian Personnel Advisory Center, the Chief implemented a panel of
three Agency officials, including himself. The Chief stated that the initial review of the
candidates’ resumes “was completed by comparing the resumes to a selection matrix on ten
different categories to include: lead experience, customer service, troubleshooting, wireless
access, problem solving, etc.”

The Chief further stated that the panel reviewed and screen the resumes based on five criteria.
The score for each category ranged from 0-5 points. He stated that once the panel reviewed and
screened the resumes, the panel met and determined “who the top five candidates were based on
the highest scores. The panel interviewed the top five candidates.” Complainant was one of the
top five candidates.

Following the interviews, the panel went over the scoring of each candidate, and the panel
members explained how they rated the candidates. The Chief stated that the panel then
“discussed who we each felt would be the best fit for the position. In the end, the panel
concluded that the total scores from the interview gave [selectee] the highest score along with his
IT technical knowledge and IT experience he was the person we selected.”

The Chief noted that the selectee was rated higher than Complainant because the selectee
provided detailed responses during the interview. The Chief also stated that the selectee told the
panel that he “previously worked as a Team Leader and that his technicians frequently came to
him for help and assistance. [Selectee] added examples from when he was a Team Leader and
how he helped his team with his technical knowledge.” The Chief explained that while
Complainant answered the interview questions based on his management skills “but he did not
provide details of his technical knowledge. The panel was looking for a technical expert, not a
management expert.”

The Director, Area II-Network Enterprise Center (“NEC”) (year of birth 1958), also
Complainant’s second level supervisor, was one of the three panel members for the subject
position. She explained at that time the panel sought an applicant with technical background,
knowledge of the NEC, and knowledge of how to handle customer support. The Director
explained that after the panel separately reviewed the candidates’ resumes, the panel members
screened the applications for minimum qualifications and rated each candidate based on the
matrix. She stated that after the panel rated the applications “we totaled the scores and divided
the score by 3 to get the final score. The candidates with the top scores were interviewed.”

2019001746

4
The Director further stated that each panel member scored the candidates’ interviews and “we
did not share our scores until after the interview. We again added up the panel members’ scores
and divided by three. I want to point out that when we initially rated the resumes, we did not
have the names of candidates, the interviews [were] the first time we knew the names of the top
five candidates.” The Director noted that the selectee’s answers to the interview questions were
“technically superior than the Complainant’s and better suited to what I was looking for (more
technical than managerial) in the position.”

Regarding claim b, Complainant alleged that on September 21, 2012, he was not recognized
during the company’s awards ceremony.

The Chief stated that he did not submit Complainant for one of the awards because he had not
contributed significantly to the United States Forces of Korea (“USFK”) mission “which was one
of the criteria for submission. [Complainant] did not participate in an exercise which would have
made him eligible for the awards.” Further, the Chief stated that the one of the two employees
who received the award was because of his outstanding work for the integration of Area 2 (8,000
employees) into the new Enterprise email system and migration to Windows 7 operating system
“which was a big accomplishment.” As for the second employee, the Chief noted that he
received the employee of the year award because he was the most productive employee in the
customer support area. The Chief stated that Complainant “just did his regular job; he did not do
anything instrumental or above and beyond his normal duties.

Regarding claim c, Complainant asserted that on October 22, 2012, his request for a Top Secret
(TS) Clearance was denied/cancelled.

The Chief stated that while he had no involvement with the denial of Complainant’s security
clearance, the decision “was made higher up, by either the Brigade Commander or the Deputy
Brigade Commander. Originally, we were supposed to have three people (two Technicians and
the Team Lead) to get a secret clearance. When we recruited [named employee (“Employee 1”)]
from the States, it was with the understanding that we would generate the paperwork to have his
top secret clearance paperwork processed.” He stated that management started the documents
needed before Employee 1 “came on board.” The Chief stated, however, the Brigade
Commander or Deputy Brigade Commander declined to approve Employee 1’s paperwork
because his position description did not indicate a top secret clearance was needed.

The Chief stated that after Employee 1 was assigned to the unit, the Brigade Commander decided
“to approve the request for only two top secret clearances (one Team Lead and one Technician).
It was decided by the command staff (Commander, XO, Acting NEC Director and myself) [to
select Employee 1] as the Technician to get the top-secret clearance because he was going to be
with the organization for three years and because his paperwork had already started the process.”
He also stated that he selected the Team Lead to get a top-secret clearance. The Chief explained
Complainant’s TS clearance was not approved due to funding and because his position
description did not require a TS clearance.

2019001746

5
With regard to all three claims, beyond his bare assertions, Complainant failed to prove, by a
preponderance of the evidence, that his age or prior EEO activity played any role in the events at
issue.

Finally, to the extent that Complainant also offered these three incidents in support of a
discriminatory harassment claim, he again has simply provided no evidence to support his claim
that his treatment was the result of his age and prior EEO activity. A case of harassment is
precluded based on our findings that Complainant failed to establish that any of the actions taken
by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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. 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.
2019001746

6
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 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 5, 2019
Date