0120093297
05-27-2011
Tera S. Yoon, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Tera S. Yoon,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093297
Agency No. ARHMPHRYS08MAY02141
DECISION
On July 2, 2009, Complainant filed an appeal from the Agency’s June 1,
2009, 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts
the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency
discriminated against him on the bases of national origin (Korean)
and age (60) when he was not selected for a position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
self-employed as a small business owner in Alabaster, Alabama. On April
25, 2008, Complainant applied for the position of Director, Family and
Morale, Welfare and Recreation (DFMWR), NF-0340-5, advertised under
vacancy announcement number KRNAFEZ080013WW, at the U.S. Army Garrison
(USAG) Humphreys in Pyongtaek, South Korea. Complainant submitted
his application by email to the Civilian Personnel Operations Center
(CPOC) in Daegu, South Korea According to the vacancy announcement,
which closed on April 25, 2008, the individual would serve as the DFMWR
“for a medium/large garrison with full responsibility and managerial
authority to plan and direct FMWR programs on a complex multi-mission
Army installation.”
On or about April 25, 2008, executives at the Installation Management
Command (IMCOM) Headquarters in Arlington, Virginia finalized the
decision to place a Senior Service College (SSC) graduate (Selectee –
American, 50) into the position. In an email dated April 25, 2008 with
the subject line “Post [SSC] Placement,” the Executive Director
of IMCOM informed the Director, IMCOM-Korea that, “[a]s discussed
it is our intention to place [the Selectee] into [the position].
The Chief, Workforce Development (CWD) of IMCOM and other members of
the IMCOM Senior Executive Leadership Group were copied on the email.
In an email dated April 26, 2008, the Deputy to the Garrison Commander
wrote, “They have assigned a [SSC] graduate against our DFMWR vacancy.
Please cancel all recruitment actions and make the necessary arrangements
to bring this individual on board.” In an email dated April 28, 2008,
the Human Resources Officer (HRO) at CPOC stated that, per a request
from the Chief, Human Resources of IMCOM-Korea, she had cancelled the
vacancy announcement for the position.
In an email dated April 28, 2008, the Agency informed Complainant and
the 13 other applicants1 for the position that management had canceled
the vacancy announcement as of April 25, 2008. The Selectee was placed
into the position effective October 11, 2008.
Complainant alleged that “the whole process of employment” for the
position was discriminatory because the Agency cancelled the vacancy
announcement after he applied to select the Selectee, who was preselected
by management. In addition, Complainant alleged that he should have
been considered for the position if discrimination did not occur, but
he was not considered for the position.
Regarding the cancellation of the vacancy announcement, HRO attested that
she cancelled it on April 25, 2008, after receiving an email stating that
IMCOM intended to place a SSC graduate into the position. In addition,
HRO attested that she was unaware of Complainant’s national origin
and age at the time of the cancellation, because she did not review the
applications, rate the applicants, or generate a referral list prior to
the cancellation.
Regarding the placement of the Selectee into the position, CWD attested
that, like all other SSC graduate placements, it was a decision made by
the IMCOM Senior Executive Leadership Group. In addition, CWD attested
that the IMCOM executives involved in the placement were unaware of
Complainant’s national origin and age at the time of the placement,
because none of them had inquired with CPOC about the applicants who
applied through the vacancy announcement. Finally, CWD attested that
IMCOM placed SSC graduates into vacant positions every year and that,
instead of returning to their old positions, they were placed into new
positions where they could utilize their SSC education.
The record reflects that the Agency has a policy of placing graduates
from the SSC program, a program for developing civilian leadership,
into vacant positions where they can apply their leadership skills.
In a memorandum dated June 5, 2003, the Vice Chief of Staff instituted a
policy of mandatory “directed placement” for all SSC graduates because
“SSC education prepares civilians for positions of greater leadership
responsibility” and “civilians with advanced leadership education
make greater contributions to the Army.” According to the Army Civilian
Training, Evaluation & Development System (ACTEDS) Training Catalog, the
SSC Graduate Placement Program “is a post-training placement process,
established by the [Vice Chief of Staff] in June 2003, that is designed
to maximize Army’s return on investment and provide an avenue for full
utilization of the competencies acquired through SSC … [The Agency]
will consider the SSC students for permanent placement laterally into
known or anticipated vacancies for which they are qualified.”
On June 20, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of national origin
(Korean) and age (60) when, on April 25, 2008, he was not selected for
the DFMWR position.
On July 1, 2008, the Agency issued a final decision dismissing
Complainant’s complaint for failure to state a claim. On October
9, 2008, the Commission reversed the Agency’s final decision and
remanded the complaint back to the Agency for further processing. At the
conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
Complainant’s request, 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.
Specifically, the decision found that Complainant failed to show that
the legitimate, nondiscriminatory reasons articulated by the Agency were
a pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant asserted, among other things, that the Agency
discriminated against him by cancelling the vacancy announcement after
he applied, with the intention to hire the pre-selected Selectee.
Specifically, Complainant contended that this fact in itself was
indicative of discrimination, citing Van Nest v. Dep’t of the Army,
EEOC Request No. 05960752 (Nov. 20, 1998). In addition, Complainant
asserted that the Agency prioritized “its favor and privilege” by
hiring the pre-selected Selectee over having a fair employment process.
In response, the Agency reiterated the arguments from its final decision
and emphasized that the IMCOM executives who placed the Selectee in
the position were unaware of Complainant’s national origin or age.
Specifically, the Agency argued that the IMCOM executives in Arlington,
Virginia had no access to Complainant’s application, which he had
submitted to CPOC in Daegu, South Korea. In addition, the Agency argued
that HRO was unaware of Complainant’s national origin or age when she
cancelled the vacancy announcement.
ANALYSIS AND FINDINGS
Standard of Review
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 Ch. 9, §�
�VI.A. (Nov. 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”).
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993). At all times, Complainant retains the burden of persuasion,
and it is his obligation to show by a preponderance of the evidence that
the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the bases of national origin and age, we find that the
Agency articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, CWD attested that the IMCOM Senior Executive Leadership
Group decided to place Selectee, an SSC graduate, into the position.
In addition, HRO attested that she cancelled the vacancy announcement
after receiving an email stating that IMCOM intended to place a SSC
graduate into the position.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason was a pretext
for national origin and age discrimination. Upon review of the record,
we find that Complainant failed to show that the Agency’s reason
was pretextual.
On appeal, Complainant cited the Van Nest decision for the proposition
that the Agency’s cancellation of the vacancy announcement after he
applied, with the intention of choosing the Selectee, was discriminatory.
However, our review of the Van Nest decision reflects that the Commission
did not make a determination regarding discrimination, but merely held
that the complainant stated a claim and remanded the complaint back to the
agency for an investigation. In addition, we note that the Commission
has held that preselection, per se, does not establish discrimination
when it is based on the qualifications of the selected individual and
not on some prohibited basis. McAllister v. U.S. Postal Serv., EEOC
Request No. 05931038 (July 28, 1994).
Here, the record reflects that the Agency cancelled the vacancy
announcement in order to place the Selectee, an SSC graduate with
“advanced leadership education,” into the vacant position planning
and directing FMWR programs for USAG Humphreys. In addition, the record
reflects that Agency policy allowed for such placement of SSC graduates.
Although Complainant argued that the employment process was unfair,
there is no indication in the record that the Agency’s actions were
motivated by unlawful discrimination on the bases of national origin
and age. We note that Complainant did not dispute CWD’s testimony
that the IMCOM executives were unaware of his national origin and
age when they chose the Selectee and instructed HRO to cancel the
vacancy announcement. Because we find that Complainant failed to
offer probative evidence demonstrating that the Agency’s selection
decision was based on prohibited bases under Title VII or the ADEA,
we find that, even if the Selectee was preselected, no discrimination
occurred. Ultimately, the Agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Burdine,
supra at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906
(Jan. 16, 1997). Accordingly, we find that Complainant failed to show
that the Agency’s explanation for his nonselection was a pretext for
unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
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 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
___5/27/11_______________
Date
1 The record reflects that the other applicants ranged in age from 34
to 69. The Agency did not provide national origin information for the
other applicants.
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0120093297
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093297