EEOC Appeal 2020000016

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Odis S.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 2020000016
Agency No. USM-2017-00909
DECISION
On August 21, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 16, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Deputy United States Marshal (DUSM), GL-
0082-9, assigned at the District of Columbia District Court in Washington D.C.
On August 8, 2017, Complainant filed a formal EEO complaint alleging the Agency discriminated
against him based on disability2 when after graduating from Basic Deputy United States Marshal
(BDUSM) training in April 2017, he learned on May 23, 2017, that he would not be promoted to
GL-0082-09 until November 2017.
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 Complainant identified his disability as a neck injury. For purposes of this analysis, we assume,
without so finding, that Complainant was an individual with a disability.

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After the investigation of the claim, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative Judge.
In accordance with Complainant’s request, the Agency issued a final decision on July 16, 2019,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed. Complainant did not submit a timely brief on appeal.
ANAYLSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 action. 	See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. 	See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. 	See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
On August 26, 2015, Complainant began his employment as a Deputy United States Marshal
(DUSM), GL-0082-7, pursuant to a conditional appointment. 	Complainant’s appointment was
subject to both; (a) his satisfactory completion of the Agency’s Criminal Investigation School and
Basic Deputy United States Marshal (BDUSM) training located in Glynco, Georgia, and (b) his
completion of 1-year initial probationary period.
In December 2015, Complainant sustained a neck injury (herniated disc) during his BDUSM
training. As a result, Complainant was reassigned to work in a light duty status in the U.S. Marshal
Service Florence office of the District of South Carolina until he recuperated from his injury, and
obtained medical clearance to continue his BDUSM training.
In October 2016, Complainant was medically cleared for full duty by his physician. In or about
November-December 2016, Complainant received his medical clearance for full duty from the
USMS Human Resources Division and Employee Health Program. The record reflects that until
a class was available at the Training Academy, Complainant continued to perform administrative
tasks in the Florence office. During this period, the Agency formally placed Complainant on
“restricted from full duty” status. The Agency reasoned that because Complainant had not
completed BDUSM training program, he was not yet certified to perform the duties of a Deputy
United States Marshal and was limited to performing administrative tasks only.

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In February 2017, Complainant returned to the BDUSM training program. 	In April 2017,
Complainant completed his BDUSM training. 	At that time, Complainant commenced his
permanent duty assignment at the D.C. District Court in Washington D.C.
On May 23, 2017, Complainant received an email from a Human Resources Specialist informing
him that his promotion to the GS-9 grade level would not be effective until November 6, 2017,
when he completed his one-year of specialized experience at the GL-0082-7 grade level.
Complainant claimed that while he was working at D. C. District Court in Washington, he was
responsible for answering the telephone and scheduling court proceedings. He also stated that he
coordinated with state and local jails to ensure the movement of inmates, observed deputies
provide courtroom security, and handled inmates in USMS custody. 	In addition, Complainant
stated that he met with prosecutors and provided testimony for 2 non-USMS related court cases
which were pending prior to his employment with the Agency. He asserted that he performed the
above stated duties as a GS-0082-7/1. 	Furthermore, Complainant stated at that time, he should
have been promoted to GS-0082-9/1 once he reached his 1-year mark. 	Complainant stated,
however, he was informed that he would not be eligible for a promotion until he graduated from
the BDUSM training course.
The Assistant Chief Deputy stated that injured DUSM candidates are not sworn in as Law
Enforcement Officer (LEO) officers. Specifically, the Assistant Chief Deputy stated that injured
DUSM have not completed formal training and are not authorized DUSM, and “that they are
restricted from performing law enforcement duties, which are operational in nature, but can be
assigned non-law enforcement duties which are administrative functions in support of the
operational duties.”
The Assistant Chief Deputy further stated that Complainant had been hired as a Deputy US
Marshal and “the job is operational in nature and the employee is expected to perform law
enforcement duties. Per OPM [Office of Personnel Management] hiring rules, the Complainant
must perform the duties of his position description (specialized experience of the DUSM job) for
52 weeks to be eligible for promotion to the next grade in the DUSM career ladder to the full
performance level GS-12.”
The Assistant Chief Deputy noted that on April 28, 2017, Complainant graduated from BDUSM
training and was assigned to this duty location in the District of Columbia, Washington D.C. She
stated that according to Agency guidance for injured candidates, Complainant was first eligible for
promotion to the GL-09 grade pay period 23 “which began on November 12, 2017.
However, upon review of National Finance Center pay records the Complainant was promoted to
the GL-09 grade prior to November on August 20, 2017, six (6) pay periods early. The Assistant
Chief Deputy said Complainant “was shy of his 52 week specialized experience by 13 weeks and
technically was not eligible to receive this promotion in August 2017 [emphasis in its original].”

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Furthermore, the Assistant Chief Deputy stated that while her team does not handle the promotions
of operational employees, she does not know why Complainant was promoted 13 weeks early.
She stated that the HR Specialist was correct in her calculations of November 6, 2017. However,
this date “falls in the second week of a pay period and we do not process promotion actions in the
middle of a pay period. Since the pay period which contains the November 6th date begins prior
to the completion of the 52 week requirement, the Complainant would be eligible for promotion
the next pay period.”
Complainant’s asserted that the USMS Human Resources purposely withheld his promotion as a
means of punishing him for being injured during BDUSM training. The Assistant Chief Deputy
asserted, however, that Complainant was treated the same as any injured DUSM candidate and “he
was sent to a district closest to his residence to recuperate. 	Once he was cleared by USMS
Employee Health Program Branch, he was returned to the next available BDUSM class to
complete his training…again, neither my team nor I are aware of any disability claimed by this
employee.”
In 	summary, 	as 	detailed 	above, 	the 	responsible 	Agency 	official 	articulated 	legitimate,
nondiscriminatory reasons for the disputed actions, which Complainant failed to prove, by a
preponderance of the evidence, were a pretext designed to mask disability discrimination.
Specifically, prior to the completion of his BDUSM training Complainant’s did not include the
specialized experience required for calculating his promotion date based on the Agency’s written
policy. As such, he was not eligible for promotion to GL-9 until November 6, 2017. This rule
would have been applied even if Complainant’s training had been interrupted for reasons other
than his injury. Moreover, there is no evidence that other trainees were treated more favorably.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed

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together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of
the request. 	Any supporting documentation must be submitted together with the 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.

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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
September 23, 2020
Date