Roscoe P.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

May 29, 2018

0120162626 (E.E.O.C. May. 29, 2018)

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

Roscoe P.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120162626

Agency No. GSA-15-NCR-WP-0088

DECISION

On August 10, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
July 11, 2016, 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. 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 Building Manager,
GS-1176-12, for the Agency’s Public Buildings Service in Washington, D.C. On September 4,
2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on
the bases of race (African-American), national origin (African-American), sex (male), religion
(Christian), color (Black), age (49), and reprisal for prior protected EEO activity when:

1. on or around May 13, 2015, his detail assignment as Project Manager was
terminated;

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.
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2. on or around May 13, 2015, he was not selected for the Customer Service Manager,
GS-1101-14, position under Vacancy Announcement Number 1511056ASMP;
3. on or around May 13, 2015, he was offered detail assignments in several programs
within the Facilities Division, and the Design Division and the offers were
rescinded as a Project Manager;
4. on or around May 13, 2015, he received an unfavorable Mid-Year APPAS Review;
5. on or around August 20, 2015, he became aware that he was ineligible for the
Customer Service Manager’s position, GS-1101-14, under Vacancy
Announcement Numbers 151105KAMP and 151108KADE; and
6. on or around August 20, 2015, he was denied a promotional opportunity with
another Federal agency based on undocumented information on his SF-50 via the
Triangle Service Center.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) 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.

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”).

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). He must generally 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). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
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v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).

Claim #1 (Detail Terminated)

According to the Agency, the detail in question, after having been repeatedly extended, was
terminated, because the “services were no longer needed.” ROI Aff. F at 182. This is a legitimate,
nondiscriminatory reason for the Agency’s action. Complainant has failed to show that the
Agency’s reason is a pretext designed to conceal discriminatory animus. One witness asserts that
the decision not to extend the detail was based, in part, on Complainant’s race, color and sex. ROI,
Aff. B. 110-111. However, he provides no evidence to support those conclusions with respect to
the detail here in question. Speculation about motivation unsupported by evidence will not support
an inference of discrimination. See Wright v. Dep't of Justice, EEOC Appeal No. 0120113629
(August 15, 2013).

Claim #2 (Nonselection – Customer Service Manager)

The Agency explains that Complainant was not referred to the second phase of the selection
process because, during his interview, he displayed only “minimally acceptable levels of the
various competencies.” ROI, Aff. E. at 165, 167. In contrast, the selectee demonstrated “strong
or mastery levels” of abilities including “decision making,” “business acumen,” and
“communicating information.” Id. at 167. This is a legitimate, nondiscriminatory reason for the
Agency’s action. Complainant has failed to show that the Agency’s reason is a pretext designed
to conceal discriminatory animus.

Claim #3 (Detail Offer Rescinded)

Complainant has failed to make out a prima facie case with respect to this claim. In its final
decision, the Agency concludes that Complainant was not offered a detail as alleged in the
complaint, although a manager, acting on Complainant’s request, unsuccessfully attempted to find
a detail position for him. Our review of the record shows that this conclusion is correct.

Claim #4 (Unfavorable Mid-Year Review)

According to the Agency, Complainant’s mid-year review was an “honest” reflection of
Complainant’s manager’s evaluation of Complainant’s performance during the relevant period. It
also included the manager’s recommendation for ways for Complainant to improve his
performance. This is a legitimate, nondiscriminatory reason for issuing the mid-year review.
Complainant has failed to show that the Agency’s reason is a pretext designed to conceal
discriminatory animus.

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Claim #5 (Ineligible for Customer Service Manager Position)

The Agency explains that Complainant, a nonveteran, was deemed ineligible for the Customer
Service Manager position because, inter alia, the vacancy announcement limited eligibility to
military veterans. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Complainant has failed to show that the Agency’s reason is a pretext designed to conceal
discriminatory animus.

Claim #6 (Denied Promotional Opportunity with Another Agency Based on “Undocumented
Information”)

Complainant has failed to make out a prima facie case with respect to this claim. He has provided
no information about any action the Agency took or failed to take with respect to the denial of a
promotional opportunity with another Agency. His affidavit testimony in response to the
investigator’s questions on the subject is largely nonresponsive. Complainant suggests that
somehow the Agency failed to supply information to support his application but provides no details
to substantiate that claim. The record shows that his application was rejected because it did not
“rate high enough to be referred” (ROI, Aff. A at 85) rather than because of a lack of supporting
documentation.

Complainant has not offered any argument in support of his appeal which demonstrates that the
Agency acted on the basis of discriminatory animus in these actions. As Complainant chose not to
request a hearing, the Commission does not have the benefit of an Administrative Judge’s
credibility determinations or findings of fact after a hearing. Therefore, the Commission can only
evaluate the facts based on the weight of the evidence presented. We find Complainant has not
established his claims of 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 finding that Complainant
did not establish that he was discriminated against as alleged.

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.
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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.
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
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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

May 29, 2018
Date