Spencer T.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 15, 2018

0120162771 (E.E.O.C. Mar. 15, 2018)

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

Spencer T.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120162771

Hearing No. 570-2013-0071X

Agency No. ARHQOSA12JAN00202

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency’s final order dated August 1, 2016, finding no discrimination
regarding his 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. For the following reasons,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Cultural Advisor (linguist), GS-0301-14, for the Director of the Iraq Security Assistance
Mission (ISAM), under a term appointment in the Civilian Expeditionary Workforce, United
States Army Central Command (USARCENT).2 The record indicates that on November 25,

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.
2 The record indicates that June 30, 2012, Complainant transferred from Department of Army to
Department of Air Force. On July 5, 2013, Complainant indicates that he lost his job. These
matters are not at issue.
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2011, Complainant contacted an EEO Counselor regarding his complaint.3 Complainant filed a
complaint on May 15, 2012, alleging discrimination based on race (Caucasian) and national
origin (Kuwait/Arab) when:

(1) On March 12, 2010, an identified officer, USARCENT, Civilian Personal Office
(CPO), denied his request for change in his service computation date. This was
reaffirmed on September 2, 2011, by another officer from the same office.

(2) At the end of the 2010 annual rating period, the rating official, Brigadier General
(BG1), ISAM, failed to place his 2010 rating into his Official Personal File, thus
preventing him from being included in NSPS (National Security Personnel System)
pay pool;4

(3) In April 2011, Lieutenant Colonel (LTC1), ISAM Executive Officer, attempted to
downgrade his award recommendation from a Meritorious Civilian Service
Commendation to a Joint Civilian Service Commendation and delayed its
presentation until August 2011.

(4) On October 15, 2011, BG2, ISAM Chief of Staff, asked questions that he believed to
be illegal questions directed at his national origin during his interview for the position
of Culture Advisor, GS-0301-14, Office of Security Cooperation – Iraq (OSC-I). He
asked, “What brought you to Houston?” and “Where were you born?”; and

(5) On October 30, 2011, he was not selected for the position of Cultural Advisor,
described in claim (4).

On May 24, 2012, the Agency issued its partial acceptance letter dismissing claims (1), (2), and
(3) due to untimely EEO Counselor contact and accepting claims (4) and (5) for investigation.
Upon completion of the investigation of the accepted claims, Complainant requested a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). On October
21, 2015, the AJ issued an order ruling on Complainant’s motion to compel, the Agency
response, and the Agency’s supplemental response sustaining the Agency’s dismissal of claims
(1), (2), and (3). On September 4, 2016, the AJ issued a decision without holding a hearing,
finding no discrimination regarding claims (4) and (5). The Agency’s final order implemented
the AJ’s decision. Complainant appeals.

3 Although Complainant was not able to actually contact an EEO Counselor until January 24,
2012, the parties agreed that his initial EEO Counselor contact was on November 25, 2011, when
he unsuccessfully attempted to contact an EEO Counselor.
4 On appeal, Complainant clarifies the incident that BG1 did place his 2010 rating into his
Official Personal File but USARCENT did not follow up on it.
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ANALYSIS AND FINDINGS

Claims (1), (2), and (3):

Regarding claims (1), (2), and (3), upon review we find that the Agency properly dismissed those
due to untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Regarding
claim (1), the record indicates that on March 12, 2010, Complainant was informed of the CPO’s
denial of his request to change his service computation date. Specifically, the CPO notified
Complainant that the Agency were unable to grant his request for a service computation date that
would credit his private sector experience. The record further indicates that Complainant
thereafter unsuccessfully appealed the subject matter within the Agency. Complainant indicated
that on September 2, 2011, the denial of his request was reaffirmed by the CPO. On appeal,
Complainant contends that his November 25, 2011 EEO contact regarding the subject matter was
timely because he did not know he was discriminated against even when he contacted the EEO
Counselor. He indicates without any further explanation that he became aware of the
discrimination just before he filed the instant complaint.

Regarding claim (2), the record indicates that Complainant was issued his “Early Annual
Assessment” for his 2010 performance appraisal at issue from BG1 face-to-face on January 29,
2011. Furthermore, the record indicates that on August 23, 2011, Complainant inquired about
his concerns about his appraisal and the NSPS pay pool at issue, along with his service
computation date change request, described in claim (1), to the CPO. In response, on September
2, 2011, the CPO notified Complainant that “[He] was not on approved performance standards;
therefore, [he] was not part of the NSPS pay pool.” Complainant contends that his EEO contact
was timely based on the same reason as he described in claim (1).

Regarding claim (3), Complainant indicated that: in April 2011, management submitted a
recommendation for a Meritorious Civilian Service Commendation award at issue; LTC1,
however changed his award to a Joint Civilian Service Commendation; in August 2011, he
learned that LTC1 also gave a Joint Civilian Service Commendation award to a identified
Corporal (a lower ranking employee); he then questioned about his award change; and in August
2011, he received a Meritorious Civilian Service Commendation. Complainant claimed that he
became aware of the discrimination in October 2011, when an identified coworker received a
Meritorious Civilian Service Commendation without any issue within 10 days (on appeal, he
indicates that it was within 2-3 weeks) of submission of the award recommendation. The
Agency indicated that the identified coworker’s award was recommended in August 2011, and
was issued in October 2011.

The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive
facts” standard) to determine when the limitation period is triggered under the EEOC
Regulations. See 29 C.F.R. §1614.105(a)(2); Ball v. United States Postal Service, EEOC
Request No. 05880247 (July 6, 1988).

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After a review of the record, we find that Complainant reasonably should have suspected
discrimination at the time of the alleged incidents in claims (1), (2), and (3) on March 12, 2010,
September 2, 2011, August 2011, respectively. Specifically, regarding claim (3), we find that
Complainant knew or should have suspected discrimination concerning his award change at the
latest in August 2011, when he learned about the Corporal’s award which prompted him to
question management about his award change. Complainant did not contact an EEO Counselor
regarding the incidents until November 25, 2011, which was beyond the 45-day time limit set by
the regulations. Based on the foregoing, we find that the Agency’s dismissal of claims (1), (2),
and (3) due to untimely EEO Counselor contact was proper.

Claims (4) and (5):

Turning to claims (4) and (5), the Commission’s regulations allow an AJ to issue a decision
without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if
it has the potential to affect the outcome of the case. In this case, we find that the AJ properly
issued a decision without a hearing because no genuine dispute of material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was employed by the
Agency as a Cultural Advisor (linguist), GS-301-14, ISAM, under a term appointment in the
Civilian Expeditionary Workforce, USARCENT. Complainant applied for the position of
Culture Advisor, GS-0301-14, OSC-I, which was also a term appointment in the Civilian
Expeditionary Workforce, USARCENT, and in that position, he would be working for an
identified three-star Lieutenant General.

Regarding claim (4), Complainant claimed that during his interview, the Selecting Officer (SO),
BG2, Deputy Chief, OSC-I, asked him, “What brought you to Houston?” and “Where were you
born?” Complainant then told the SO that he was born in Kuwait. Complainant claimed that
there was a stereotype that Iraqis did not like Kuwaitis although he did not believe that to be the
case. Complainant indicated that although he was born in Kuwait, he was of Iraqi origin.

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The SO indicated that during the interview, he asked the same 16 questions to all candidates,
including some natural follow-up questions based on the interview. His question “how he came
to be in Houston” to Complainant was a follow-on question to interview question #1 – “Tell me
about yourself.” The SO stated that his sole intent for asking those questions as Complainant
alleged was to get to know the candidates, be personable, and “break the ice” so they were
comfortable with the interview process.

Regarding claim (5), the SO indicated that there were approximately 20 applicants and a panel
referred him four of those applicants for the selection process. The SO stated that he developed
16 questions which were reviewed and approved by the servicing Judge Advocate. The SO
stated that based on the interviews and resumes, he selected a Selectee (SE) who was a Senior
Cultural Advisor, GS-15, for the USF-I Chief of Staff because the SE was the best qualified for
the position at issue due to his experience at the four-star level and his extensive knowledge on
the transition of USF-I to OSC-I, the long-term mission of OSC-I, OSC-I’s relationship with the
U.S. Embassy, and Foreign Military Sales.

Complainant claimed that the SO, and many Generals, believed that Iraqis did not like Kuwaitis.
The AJ stated and we agree that Complainant’s argument was speculative and insufficient to
show that the SO used Complainant’s birthplace as a factor in his nonselection. Complainant’s
former supervisor, who was the General and also a strong supporter of Complainant, indicated
that he was unaware of any stereotype amongst the Generals serving in Iraq that Iraqis did not
like Kuwaitis. The former supervisor acknowledged that he did not know the SE at the relevant
time. Complainant claimed that he was already performing in the position at issue as a U.S.
federal employee. Complainant’s current supervisor disagreed with that characterization and
indicated that Complainant was performing as his Cultural Advisor in ISAM Directors, and not
in OSC-I. The SO also indicated that Complainant was never the Cultural Advisor to a three-star
Lieutenant General.

Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reason for not selecting him for the position. Furthermore, Complainant
failed to show that his qualifications for the position were plainly superior to the SE’s
qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2,
1995). Based on the foregoing, we find that Complainant has failed to show that the Agency’s
action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order dismissing claims (1), (2), and (3), and finding no
discrimination concerning claims (4) and (5) is AFFIRMED.

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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.
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.

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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

March 15, 2018
Date