Sammy R.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 9, 2019

0120181951 (E.E.O.C. Aug. 9, 2019)

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

Sammy R.,1
Complainant,

v.

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

Appeal No. 0120181951

Hearing No. 531-2015-00166X

Agency No. ARDETRICK13OCT04020

DECISION

On May 17, 2018, 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
May 2, 2018, final order concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 order.

ISSUE PRESENTED

The issue presented is whether the Agency subjected Complainant to discrimination when on
October 22, 2013, he learned that management did not select him for the Supervisory Supply
Management Specialist position.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Property Book
Officer, GS-2001-09, for the U.S. Army Sustainment Command, Logistics Readiness Center in
Fort Detrick, Maryland.

On February 6, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability (physical – neurological nerve damage) and age (over 40)
when on October 22, 2013, he became aware that he was not selected for the GS-2003-12
Supervisory Supply Management Specialist position, U.S. Army Sustainment Command, Fort
Detrick, Maryland, for which he applied under vacancy announcement number
NEBB13699541963107.2

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). Complainant timely requested a hearing. The AJ cancelled the initial in-person hearing due
to Complainant’s noncompliance with the AJ’s orders. The AJ rescheduled the hearing and held a
two-day hearing in which Complainant participated via videoconference on August 23 and 24,
2016.

During the hearing, Complainant testified that he applied for the vacancy at issue and received an
email stating that he was eligible for the position. He indicated that on October 1, 2013, he took
leave for surgery, and when he returned to work on October 21, 2013, he learned that management
had already selected an individual who was his subordinate to fill the vacancy. Complainant
indicated that the selectee went from a GS-09 to a GS-12. Complainant testified that the selecting
official told him that she had personally selected the selectee for the position, which Complainant
contended was illegal because only human resources can extend job offers. He also expressed
concern that management had rushed the hiring process while he was on leave for surgery.
Complainant emphasized that the selecting official knew since 2007 about his status as a 30 percent
disabled veteran because she had worked with him. Complainant asserted that despite the selecting
official’s knowledge about his disability status, the selecting official discriminatorily failed to
consider his augmented scores (i.e., 10 point disabled veteran preference) and did not consider him
under the alternate hiring authority.

2 Complainant also alleged that: 2) on multiple occasions, management failed to respond to his
requests that the position description for the Property Book Officer should be changed to reflect
the actual duties for the position and should reflect a GS-12/13 position; and 3) on multiple
occasions, new employees who were assigned to the organization were removed from his section
and moved to other sections to ensure that he would not have opportunity to supervise employees.
The Agency, however, dismissed these claims for untimely contact with an EEO counselor.
Because Complainant did not challenge the Agency’s decision to dismiss these claims, we will
limit our review to the nonselection claim at hand.
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The selecting official for the position testified that the vacancy announcement limited applicants
to those who were current Army civilian employees with competitive status, and, as such, the 10-
point veterans’ preference did not apply.

She indicated that the selectee had approached her during the hiring process and requested that she
hire him under the 30 percent disabled veterans’ program. The selecting official testified that she
inquired with human resources about the alternate hiring authority, and human resources told her
that she did not have to hire off the referral list and could fill the vacancy with a qualified disabled
veteran. The selecting official indicated that she filled the vacancy with the selectee because she
had previously worked with that individual and knew his work ethic. The selecting official
emphasized that she was unaware that Complainant wanted the position because Complainant’s
name was not on the referral list and he never informed her of his desire for the position. She
further emphasized that at no time did Complainant inform her that he wished to be considered
under the alternate hiring authority for disabled veterans.

On August 24, 2016, the AJ issued an oral bench decision in favor of the Agency, and on March
8, 2018, the AJ issued a written decision entering judgment. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency representative flatly lied to him when she told
him that he would have to pay to interview witnesses and pay for the court reporter. Complainant
also contends that the Agency went out of its way to inconvenience him, as he incurred costs as a
result of the cancelled hearing. He asserts that nothing has been sent to him since the video
conference hearings.

Regarding the merits of the case, Complainant contends that he received an augmented score of
107, which made him highly qualified for the position. He notes that the selectee, in contrast, was
rated as not qualified. He asserts that the selecting official rejected the list that he was on and had
human resources rate the selectee after the selectee privately spoke to her about hiring him as a 30
percent disabled veteran. He contends, however, that he too is a 30 percent disabled veteran and is
more qualified than the selectee. Finally, Complainant alleges that the hiring smacks of
preselection and favoritism and that the selecting official did everything in her power to keep him
out of that job.

The Agency, in response, requests that the Commission affirm its final decision, which adopted
the AJ’s finding of no discrimination.

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ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter
9, at § VI.B. (Aug. 5, 2015).

Initially, we address Complaint’s contentions on appeal regarding the hearing process. While we
acknowledge Complainant’s contention that the Agency representative improperly told him that
he would have to pay to interview witnesses and pay for the court reporter, we note that under our
regulations, the parties must initially bear their own costs for discovery. See EEO MD-110,
Chapter 7, at § IV.F. For this reason, we find that the Agency representative did not misinform
Complainant. As for Complainant’s contention regarding the expenses that he expended due to the
cancelled hearing, while we recognize that the AJ’s decision to cancel the hearing may have
negatively affected Complainant’s finances, we note that the AJ has broad discretion in
determining whether a hearing will be held. Because the record shows that the AJ cancelled the
initial in-person hearing due to Complainant’s noncompliance with the AJ’s orders, we find that
the AJ did not abuse his discretion in canceling the hearing.3 To the extent Complainant contends
that he did not receive notice of any decision being made, the record shows that the AJ’s “Order
Entering Judgment” was served on Complainant by email on March 20, 2018.

Complainant also contends that he was more qualified than the selectee. In this regard,
Complainant asserts that he had an augmented score of 107, which made him more qualified than
the selectee, who in contrast was rated as not qualified. He asserts that the selecting official rejected
the list that he was on and had human resources rate the selectee after the selectee privately spoke
to her about hiring him as a 30 percent disabled veteran. Complainant contends that the hiring of
his subordinate for the position smacks of preselection and favoritism. He alleges that the selecting
official did everything in her power to keep him out of that job.

For a complainant to prevail in a claim of disparate treatment, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference
of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment

3 We note that the AJ subsequently held a two-day hearing by teleconference on August 23 and
24, 2016, thereby minimizing additional costs to Complainant.
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action. McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately 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, 143 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

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. Dep't of Transportation, EEOC Request
No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request
No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).

In nonselection cases, Complainant can demonstrate pretext by showing that his qualifications for
the position were plainly superior to those of the selectee. Hung P. v. Dep’t of Veterans Affairs,
EEOC Appeal No. 0120141712 (Dec. 3, 2015). Other indicators of pretext include discriminatory
statements or past personal treatment attributable to those responsible for the personnel action that
led to the filing of the complaint, comparative or statistical data revealing differences in treatment
across various protected-group lines, unequal application of Agency policy, deviations from
standard procedures without explanation or justification, or inadequately explained inconsistencies
in the evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov.
12, 2015).

Here, the AJ found that the Agency had legitimate, nondiscriminatory reasons for not selecting
Complainant for the position at issue. In his decision, the AJ acknowledged that neither
Complainant nor the selectee made the best qualified list, as Complainant did not score high
enough, and the selectee did not meet the time-in-grade requirement. The AJ noted, however, that
the selectee sidestepped the time-in-grade requirement by asking the selecting official to hire him
under an alternate hiring authority, which gave preference to veterans who are at least 30 percent
disabled without regard to time-in-grade requirements. The AJ found that the selecting official was
unaware of Complainant’s candidacy because Complainant was not on the best qualified referral
list and did not tell her about his desire for the position. The AJ also found that Complainant, unlike
the selectee, did not request hiring through the alternate hiring authority.

We concur with the AJs finding that the Agency had legitimate, nondiscriminatory reasons for its
actions. While we acknowledge Complainant’s contention that he was more qualified than the
selectee, we find substantial evidence to support the AJ’s finding that the selecting official had no
knowledge of Complainant’s desire for the position, as Complainant’s name was not on the referral
list, and he did not inform her of his desire for the position.
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As for Complainant’s contention regarding his augmented score, we find substantial evidence to
support the AJ’s finding that veterans’ preference did not apply because the vacancy
announcement was internal to the Agency. Substantial evidence also supports the AJ’s finding that
the selecting official was unaware of Complainant’s status as a 30 percent disabled veteran and
did not know that Complainant wanted to be considered under the alternate hiring authority for
disabled veterans. Consequently, we affirm the AJ’s finding of no discrimination.

In reaching this conclusion, we considered Complainant’s allegations that the selection process
was tainted with favoritism and preselection; however, we note agencies have broad discretion to
choose among equally qualified candidates as long as the selection is not based on unlawful
considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019).
They may select candidates with fewer years of experience if they believe that such candidates are
best qualified to meet the needs of the organization. Barney G. v. Dep't of Agric., EEOC Appeal
No. 0120172111 (Nov. 29, 2018). They may even preselect a candidate as long as the preselection
is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No.
0120172112 (Nov. 29, 2018). The Commission cannot second-guess such personnel decisions
unless there is evidence of a discriminatory motivation on the part of the officials responsible for
making those decisions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). For the
reasons discussed above, we find that Complainant has failed to show that animus based on his
disability or age was the real reason for his nonselection.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision implementing
the AJ’s decision finding no discrimination because the preponderant evidence fails to show that
Complainant was subjected to discrimination 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.
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.
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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

August 9, 2019
Date