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

Equal Employment Opportunity Commission

Jul 25, 2014

0120130857 (E.E.O.C. Jul. 25, 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. 0120130857

Agency No. ARFTCAMP11JUNO2434

DECISION
On December 4, 2012, Complainant filed an appeal from the Agency’s November 2, 2012
final decision concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq, and the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § 621 et seq

. Our review is de novo. 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 Recreation
Assistant at the Agency’s work facility in Fort Campbell, Kentucky. On June 28, 2011,
Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against
him on the bases of his race (African-American), sex (male) and age (64) when:

1. On May 27, 2011, Complainant was denied a promotion to serve as the Manager of
Lozada Physical Fitness Center by his second level Supervisor.

2. The second level supervisor empowered a coworker to make decisions that impacted
him.

3. From the start of Complainant’s employment six years ago until June 28, 2011,
Complainant was denied a pay raise by his second level supervisor.

4. On July 29, 2011, Complainant’s schedule was changed arbitrarily to appease
another employee.
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Complainant also claimed that he was discriminated against in reprisal for his prior protected
EEO activity when he learned on February 3, 2012, that he had not been selected for the
position of Supervisory Recreation Assistant. Complainant claimed that the alleged actions
constituted a hostile work environment.

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. 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 Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. With regard to claim (1), the Agency noted that Complainant
claimed he deserved to be promoted to the manager position because he served as acting
manager when the incumbent was on leave and he performed some of the managerial
functions, such as year-end budgets and staffing. Complainant’s third level Supervisor stated
that another employee was detailed to the acting manager position since at the time a hiring
freeze was in effect which kept management from advertising the position. Moreover, the
third level Supervisor explained that Complainant was not detailed because management had
concerns about his past performance. According to the third level Supervisor, the second level
Supervisor made his selection choice based on the selectee’s knowledge, skills and abilities.1

With regard to the selection for the permanent Manager position referenced in claim (5), the
same individual who was assigned the detail was selected for the permanent position. The
selecting official stated that she was rated first among the referred applicants, and Complainant
was ranked third after the interview process. The selecting official asserted that the selectee’s
ranking reflected her performance as an acting manager. He noted that there were no
complaints while the selectee was there, and she reached out and did more than she was paid to
do. Another official who assisted in the selection process stated that the selectee was chosen
due to her approachability and manner of dealing with people. The Agency determined that
Complainant failed to establish that he was the superior candidate. With respect to
Complainant’s contention that the selectee was preselected, the Agency stated that
consideration of her performance during the detail was not preselection.

As for claim (2), the relevant incident involved a recreation supervisor informing the second
level Supervisor that the recreation assistants were not helping the physical fitness instructor
set up her equipment. Complainant and the other recreation assistants were directed to provide
such assistance. The Agency stated that Complainant believed everyone has their own job to
do so they should not be required to assist someone else in the performance of their job. The
recreation supervisor explained that she worked directly for the second level supervisor, and

1 The second level Supervisor is now retired and was not willing to participate in the
investigation. There are no circumstances present that warrant a sanction.
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her suggestions were intended to promote teamwork. The third level Supervisor commented
that the recreation supervisor was fulfilling her job responsibilities as her job involves assisting
in the conduct and operations of the program. The Agency noted that the third level
Supervisor further stated that assisting in the set-up of equipment is one of the duties of
recreation assistants. The Agency determined that Complainant was not treated less favorably
than similarly situated recreation assistants given that they were all required to provide
assistance in setting up equipment.

With respect to claim (3), Complainant stated that he has not received a pay raise even though
his Supervisor has repeatedly recommended that he receive a raise. The Agency stated that
none of the other recreation assistants received a raise. The third level Supervisor referenced
Complainant’s performance problems such as when he was accused of inappropriate conduct
toward a customer, with the matter being investigated by law enforcement. The Agency noted
that the only employee to receive a raise was a maintenance worker who is the same race and
sex as Complainant and also over 40 years of age.

As for the schedule change at issue in claim (4), Complainant claimed that he had to work six
straight days when his schedule was arbitrarily changed to appease a 21-year old Caucasian
employee. The change occurred as a result of some employees traveling to Georgia to pick up
equipment. The Agency determined that this constituted a legitimate, nondiscriminatory
reason for the schedule change. Complainant’s Supervisor stated that Complainant was not
directed to work in place of the Caucasian employee, but rather he was asked to do so and he
agreed to do it. The Supervisor noted that Complainant was given an alternate day off in
exchange for working the day in question. The Agency determined that Complainant failed to
establish that its explanation for the schedule change was pretext intended to mask
discriminatory intent. Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under the alleged bases with regard to each of the claims in the complaint. The Agency
explained as to claim (1) which involved the detail to the acting manager position that the
person assigned was chosen rather than Complainant due to her knowledge, skills and abilities
and management’s concern about Complainant’s past performance. As to claim (5) concerning
the selection to the permanent manager position, the Agency chose the same individual who
had most recently served the detail as acting manager. The Agency explained that she was
selected based on her demonstrated performance as an acting manager, which led to her being
ranked first during the interview process. In terms of Complainant’s prior conduct
deficiencies, the Agency cited an incident where Complainant was suspended in 2003 from his
position with the Agency’s Child and Youth Services for engaging in discourteous conduct
with a coworker and creating a disturbance resulting in an adverse effect on morale, production
and maintenance of proper discipline. The Agency stated that Complainant was investigated in
December 2007, by the Criminal Investigation Command, which determined that he committed
the offense of abusive sexual contact, a matter it stated was subsequently dismissed by the
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United States District Court. The Agency noted that Complainant also faced a complaint of
abusive behavior in November 2010, as a customer stated that he was rude and slanderous and
made comments with racial overtones that led her to tears. Additionally, the Agency stated
that on December 1, 2010, Complainant received a counseling statement from his second level
Supervisor. According to the Agency, Complainant refused to move equipment in an aerobics
class and was considered insubordinate. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its decisions regarding the detail and the permanent selection.

Complainant attempts to establish pretext by focusing on the fact that he consistently received
excellent performance ratings during his years as a recreation assistant. Complainant also
contends that preselection occurred in light of the selectee being chosen for the detail prior to
her eventual selection for the permanent position. We find that the conduct issues that arose
during his employment had a legitimately negative impact on Complainant’s otherwise strong
qualifications. The selectee for both the detail and the permanent position presented no such
conduct issues, and she had the requisite knowledge, skill and abilities. In terms of the
permanent position, the selectee was ranked first after the interview process and Complainant
was ranked third. Further, even if preselection occurred, Complainant has not shown that any
such preselection was motivated by discriminatory animus. Goostree v. Tennessee, 796 F.2d
854, 861 (6th

Cir. 1986). We find that Complainant has failed to establish pretext with regard
to claim (1). As to claim (5), we find that Complainant has not established that his
nonselection was attributable to reprisal.
As for claim (2), the Agency stated that it was part of Complainant’s job duties to assist the
physical fitness instructor in setting up her equipment. We find that this constitutes a
legitimate, nondiscriminatory reason for the Agency’s action. Complainant believed the
recreation supervisor was influencing the second level Supervisor’s decisions and that it was
impacting him. We find, however, that Complainant has not made a persuasive showing that
he was treated differently than other recreation assistants outside of his protected classes when
he was given the instruction at issue. With respect to claim (3), the Agency stated that
Complainant was treated no differently than the other recreation assistants as none of them
received a pay raise.

As to claim (4), we find that the Agency articulated a legitimate, nondiscriminatory reason for
altering Complainant’s work schedule based on the fact that other employees had gone to pick
up equipment out of state, and Complainant agreed to the schedule change. Complainant
argues that the schedule change was effected in order to appease a 21-year old Caucasian
employee but he has offered no persuasive evidence to substantiate this contention. We find
that Complainant has not established that any discriminatory motivation was involved in the
matter at issue in claim (4). Finally, with respect to Complainant’s claim of a hostile work
environment, we find that the incidents at issue were not of sufficient severity or pervasiveness
to constitute harassment.

0120130857

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CONCLUSION
For the reasons set forth above, 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
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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

Date
July 25, 2014