EEOC Appeal 2020001621

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hyun T.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020001621
Hearing No. 420-2019-00216X
Agency No. ARREDSTON17AUG03267
DECISION
On December 3, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 1, 2019 final action concerning an equal employment opportunity (EEO)
complaint claiming 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 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 Human Resources (HR) Specialist, GS-0201-
13, at the Agency’s Headquarters Army Material Command, HR Operations & Support Division
in Redstone Arsenal, Alabama.
On October 6, 2017, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on race (African-American), sex (female), disability
(unknown), and in reprisal for prior EEO activity (Agency Case No. ARREDSTON15NOV04725)
when:
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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a. 	on or about August 3, 2017, Complainant learned she was not selected for GS-0201-13 Job
Announcement 	Number 	SCBK1710012219683444 	within 	G-1, 	Human 	Resources
Operation and Support 	Division/Human Resources Action Branch, 	Army Material
Command (AMC);
b. 	on July 31, 2017, she was directed by the Supervisory Human Resources (HR), AMC to
generate the FY18 AMC Newcomers 101 Course dates despite being informed that 90%
of her responsibilities were determined to be non-enduring due to the proposed abolishment
of her position;
c. 	on July 31, 2017, the Supervisory HR stated that Complainant was to provide whether or
not she planned on attending Organizational Day events by the end of the year;
d. 	on July 25, 2017, the Supervisory HR requested a desk audit on Complainant’s position
while Complainant was on medical leave;
e. 	on July 19, 2017, Complainant was prevented from presenting work to Senior Leadership;
f. 	on July 17, 2017, while on leave, she was required to provide telephone updates about
work;
g. 	on July 7, 2017, the Supervisory HR had a conversation with another employee reference
her position being eliminated;
h. 	on or about June 29, 2017, a desk audit was initiated to justify a downgrade of
Complainant’s position from GS-13;
i. 	sometime early June 2017, Complainant’s request for an accommodation was not
approved;
j. 	on or about May 31, 2017, Complainant’s support staff was reassigned without her
knowledge or input while she was on medical leave;
k. 	on or around May 2017, approximately 13 employees identified as potential losses were
transferred to permanent positions, protecting them from a Reduction-In-Force (RIF).
However, Complainant did not receive the same opportunity;
l. 	on February 15, 2017, the Supervisor HR did not provide Complainant with her objectives;
m. on February 13, 2017, Complainant was informed of the abolishment of her position due
to an upcoming RIF, to be effective October 2017 or in Fiscal Year 2018;
n. 	since June 2016, Complainant was denied Civilian Strength/BOXI, which are required to
conduct her job; and

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o. 	since about November 4, 2016 to present, Complainant alleged the Colonel, Supervisory
HR, and Acting Assistant Deputy denied numerous training requests submitted through
Civilian Human Resources Training Application System (CHARTAS).
After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). 	Thereafter, the AJ issued a Post Initial
Scheduling Conference Order dated May 1, 2019, in which she dismissed claims d and l - o on
various procedural grounds. Because Complainant does not contest the dismissal of these claims,
we will not address them further herein. 	We will confine our analysis to the remaining claims,
adjudicated on their merits.
The Agency filed a Motion for Summary Judgment on the remaining claims. 	Complainant
responded to the Motion. On September 17, 2019, the AJ issued a decision by summary judgment
in favor of the Agency, finding no discrimination concerning claims a - c and e - g. 	In its
September 17, 2019 final action, the Agency adopted the AJ’s decision.
The instant appeal followed. Complainant did not submit a timely brief on appeal.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.
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).

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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).
The undisputed facts fully support the AJ’s determination that the responsible management official
clearly articulated legitimate, non-discriminatory reasons for its actions.
During the relevant period, Complainant was employed as a HR Specialist at the Agency’s
Headquarters Army Material Command, HR Operations & Support Division in Redstone Arsenal,
Alabama.
Regarding claim a, Complainant asserted that on or about August 3, 2017, she learned she was not
selected for GS-0201-13 Job Announcement Number SCBK171001331968344 within G-1, HR
Operation and Support Division/Human Resources Action Branch, AMC.
The AJ noted at the time Complainant applied for the HR Specialist, GS-0201-13 position, she
was already assigned as a HR Specialist, GS-0201-13 position. However, the major duties in the
GS-0201-13 HR Specialist position in which Complainant had performed for over six years are
classified in the Career Program 50 specialty. The Career Program is commonly referred to as a
“Military HR” specialist. In contrast, the major duties in the GS-0201-13 vacant position in which
Complainant 	was 	not selected 	were identified 	as 	“Civilian – 	vice Military – 	Personnel
Management” program/project assignments, and are classified in the Career Program 10 – Vice 50
specialty.
The Supervisory HR (Black male, no disability), also Complainant’s supervisor was the selecting
official for the position of HR Specialist position. 	He stated that he developed five skillsets as
follows: use of automated tools; processing civilian hiring actions; assisting with civilian
performance appraisals; assisting with civilian hiring actions; assisting with civilian performance
appraisals; assisting with civilian position management; and developing policies, procedures, and
guidance and regulations. The supervisor stated that after a review of four candidates’ resumes,
he chose the selectee (African-American female) for the subject position because of her experience
and overall score. The selectee received an overall score of 21 while the second candidate received
an overall score of 17, and Complainant received an overall score of 14. The supervisor also noted
that the selectee had 3 years of relevant Civilian HR experience in the three skillsets from October
2014 to July 2017 at the GS-12 level.

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The supervisor stated that he did not select Complainant for the subject position because she had
approximately one and one-half years of experience of relevant Civilian HR experience in the three
skillsets of six-month training rotation as a GS-11 in 2006-2007, and twelve months as a GS-12
assisting Civilian HR Specialists with their duties in 2007-2008. Moreover, the supervisor stated
that Complainant’s race, sex, disability and prior protected activity were not factors in his decision
to select the selectee for the subject position.
Regarding claim b, Complainant alleged on July 31, 2017, she was directed by the supervisor to
generate the FY18 AMC Newcomers 101 Course dates despite being informed that 90% of her
responsibilities were determined to be non-enduring, due to the proposed abolishment of her
position.
The supervisor explained that on July 31, 2017, he directed Complainant to complete an enduring
task which remained a part of her HR Specialist duties until such time that she was reassigned to
a different position. He also noted that all 102 employees whose positions were being abolished
by an Agency “Reshape” would be expected to continue their regular duties until such time as they
were reassigned.
Furthermore, the supervisor stated that he informed Complainant that the AMC Newcomers course
was an enduring mission requirement as evidenced by the fact that the course continued to be
regularly held, and continues to be held with the latest session occurring just recently on August
13-14, 2019.
Regarding claim c, Complainant alleged that on July 31, 2017, the supervisor stated that
Complainant was to indicate whether or not she planned on attending Organizational Day events
by the end of the year.
Complainant claimed that the supervisor was rude to her when he directed her to let him know
whether or not she plans to attend the Organizational Day by the closing of business.
The supervisor explained that “each team member has to provide a response whether or not they
will attend. Because if they do attend, then that is their place of duty. 	If they’re not attending,
then they’ll either be back in the office or they could be on - - they could be on leave. So it’s really
providing a status update regarding - - regarding - - what they will be doing during that day.”
Regarding claim e, Complainant claimed that on July 19, 2017, she was prevented from presenting
work to Senior Leadership.
The supervisor stated that Complainant’s work would “necessarily come through me as the
Division Chief or as a supervisor. And so, this would be an instance to where she wanted whatever
she submitted to - - she wanted to present it directly to senior leadership…but normally, I would
review the work and I’m expected to review the work before it would go to senior leadership and
determine if - - she needs to brief the leadership. And that goes with anyone within the team.”

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The record reflects that Complainant was not available to either personally attend the Pre-Briefing
Planning and vetting sessions or to present work to the Senior Leader at the quarterly Personnel
Readiness Review (PRR) briefing session held on July 19, 2017, because she only worked 3 days
on July 3, 6, and 31, 2017. Specifically, Complainant submitted her request for 80 hours of annual
leave from July 10, 2017 through July 21, 2017. 	In July 2017, Complainant submitted a leave
request for 16 hours of credit hours for July 5 and 7, 2017. On the day that Complainant was to
return to duty, but she submitted another leave request for 40 hours of sick leave for July 24, 2017
through July 28, 2017.
Regarding claim f, Complainant asserted that on July 17, 2017, while on leave, Complainant was
required to provide telephone updates about work.
The supervisor asserted that he does not recall making this requirement, and that after a review of
his emails, there was not email correspondence from him to Complainant directing her to provide
telephone updates while on leave on July 17, 2017. He also stated he had no knowledge of anyone
contacting Complainant and directing her to provide work-related information while she was on
leave.
Regarding claim g, Complainant alleged that on July 7, 2017, the supervisor had a conversation
with another employee about Complainant’s position being eliminated.
The Administrative Services Assistant asserted that she did not have a conversation with the
supervisor concerning Complainant “but it was rumored around the office that the [Complainant’s]
position was being eliminated.”
The supervisory noted that the Administrative Services Assistant may have become aware of the
elimination of Complainant’s position because she was a member of the G-1s Human Resources
Action Branch charged with placing the employees on the Reshape list into enduring positions, he
does not recall having a conversation with the Administrative Services Assistant.
Beyond her bare assertions, Complainant failed to produce adequate evidence to prove that her
race, sex, disability and prior protected activity played any role in the matters at issue. Complainant
did not prove, by a preponderance of the evidence, that the Agency management’s proffered
reasons were a pretext designed to mask discrimination on the bases alleged.
CONCLUSION
We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding
no discrimination concerning claims a – c and e - g.

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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
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).

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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
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
October 6, 2020
Date