EEOC Appeal 2020001401

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roland T.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020001401
Hearing No. 410-2019-00216X
Agency No. ARUSAR18MAY01932
DECISION
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 November 1, 2019, final
order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. 	For the following reasons, the Commission AFFIRMS the
Agency’s final action finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Family Program
Coordinator, GS-0101-11, at the Agency’s 3 rd Medical Deployment Support Command (MDSC)2,
Family Program Office, Forth Gillem, Georgia. Person A was a Human Resources Officer. Person
B was the Command Executive Officer for the 3 rd MDSC. 	Person C was the Family Programs
Director. Person D was the Deputy Commanding General.
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 3rd MDSC is also referred to in the record as the 3D Medical Command Deployment Support
(MCDS) and MEDCOM.

2020001401	2
On July 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and/or subjected him to harassment on the bases of race (African-American), sex
(male), disability, and in reprisal for prior protected EEO activity when:
a. 	Since September 2017, Complainant’s supervisor, Person A, has excluded him from
discussions regarding operations and his responsibilities;
b. 	From November 2017 to present, Complainant’s evaluation was delayed, which affected
his eligibility for performance awards;
c. 	From December 2017 to present, Complainant’s request for compensatory time has been
delayed or denied; and
d. 	On April 9, 2018, Person A denied Complainant’s request for travel to conduct training.
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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ
assigned to the case determined sua sponte that the complaint did not warrant a hearing and over
Complainant's objections, issued a decision without a hearing on September 26, 2019. 	The AJ
found the record sufficiently developed through the report of investigation. 	The AJ noted the
information Complainant identified as essential to supporting his opposition to summary judgment
“was beyond the scope of reasonable development of evidence and/or not relevant to the pertinent
issues in this case.” The AJ noted that many of the documents Complainant indicated he would
seek in discovery were determined not to exist. 	Also, the AJ noted another discovery request
proposed was “essentially a fishing expedition” to find allegedly problematic responses to his
requests for compensatory time. Thus, the AJ issued a decision without a hearing in the Agency’s
favor.
The Agency subsequently issued a final action on November 1, 2019. The Agency’s final action
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.
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).

2020001401	3
At the outset, we find the AJ properly determined the record in the present case was fully
developed. 	Regarding claim (a), Complainant stated that on different occasions, the Family
Programs Director would ask him about the duties he had going on and would indicate that Person
A wanted Complainant to work on certain issues. 	When asked to explain all instances since
September 2017 when Person A excluded him from discussions regarding operations and
responsibilities, Complainant stated he “cannot recall any specific instances because she have [sic]
never discussed my duties and responsibilities with me.”
Person A stated Complainant was never excluded from discussions regarding his roles and duties
as a Family Program Coordinator. Person B stated he was not aware of specific issues concerning
Complainant being excluding or not part of operational functions of Family Programs. Person B
stated on the contrary, Complainant was informed on several occasions that he was not completely
open with the new Family Programs Director. Person B noted that Family Coordinator functions
are based on the Family Programs Director’s Action Plan and requirements. Person B stated that
on several occasions, Complainant stated that this is not how he sees the program requirements.
Regarding claim (b), Complainant argued his evaluation was delayed, which affected his eligibility
for performance awards. Complainant stated he provided everything needed to Person B and cc’d
Person A regarding his evaluation twice in December 2017, and again in February 2018.
Complainant claimed the evaluation was due in November 2017, with an ending date of October
2017. 	Complainant stated he signed the evaluation in April 2018, after management signed it.
Complainant stated he asked Person B about the delay and Person B explained the change in
computers contributed to the delay. Complainant argued he should have received an award for the
rating period.
Person B noted that the 3rd MCDS holds a quarterly Civilian Awards Board to ensure all
supervisors have an opportunity to recognize employees during the fiscal year. Person B noted in
this case the Board was held in the second quarter. 	Person B stated that Person A submitted
Complainant’s evaluation. Person B stated there were delays on Complainant’s part. Person B
noted that Complainant submitted his Support Form and Draft evaluation several times. Person B
stated the documents originally provided by Complainant were not correct and no one was able to
open them. Person B stated that lateness of an evaluation does not play a part in eligibility for an
award.
Person A noted the close out evaluation covering the rating period of November 1, 2017, to May
31, 2018, was not delayed for Complainant.3 Person A explained that Complainant’s evaluation
was done and submitted to the senior rater in a timely manner on June 19, 2018.
3 Complainant’s evaluations contained in the record covered the periods of November 1, 2015 -
October 31, 2016; November 1, 2016 - October 31, 2017; and November 1, 2017 - May 31, 2018.
The record reveals the evaluations for other employees for the time at issue also covered the same
time frames.

2020001401	4
Person A noted she recommended Complainant for a monetary award of $1,000.00 which was
approved on September 18, 2018. Person A noted the due date for the evaluation to be uploaded
was 45 days after the closeout date.
Regarding claim (c), Complainant alleged that he submitted several requests to Person A dating
back to December 2017, and that some had not been approved or denied without an explanation.
When asked to identify each occurrence of compensatory time requested since December 2017,
Complainant stated there were 42 instances of request for compensatory time and noted, “I do not
have all the information readily available at this time, some of the information would have to be
researched to archived email.” 	Further, Complainant stated the compensatory time was finally
approved after complaining to his chain of command (Person D). Complainant explained that after
meeting with Person D, “all except one of the compensatory time was immediately approved
without explanation of why there were not previously approved.”
Person A noted an instance where Complainant requested two hours of compensatory time be
approved for his volunteering to assist with a holiday gala (military ball). Person A explained that
she and Person B advised Complainant that he could not receive compensatory time for
volunteering to assist outside of his normal duty hours. Further, Person A noted that compensatory
time requested by Complainant for March 2018, was delayed until she could sort out the correct
time that should have been submitted by Complainant and Person C who were traveling together.
Person C requested 2.5 hours and Complainant requested 5.5 hours. Person A said she spoke to
both employees and Complainant acknowledged that he requested the wrong number of hours and
that it should have been categorized as comp-travel versus comp-time earned. 	Person A stated
Complainant was advised to make the correction and resubmit for approval. She stated as of the
present, Complainant had not resubmitted the compensatory time for travel to be approved. Person
A noted compensatory time for Person C was also delayed as a result of the contradicting requests
between Person C and Complainant.
Person B explained that a request for compensatory time is not automatic based on the fact an
employee requests the time. 	He noted that supervisors are required to ensure the time is valid
based on mission requirements and fiscal responsibility. 	Person B stated on one occasion,
Complainant volunteered to help setup for another unit’s holiday gala (military ball). 	Person B
explained there is no requirements for civilians to be paid to support a military unit. 	Person B
noted Complainant volunteered his personal time, but then later in the pay period requested
compensatory pay. Person B stated such a request could be identified as a fraudulent pay request.
Person B noted Complainant was counseled and the pay request was not approved.
Regarding claim (d), Complainant claimed that on April 9, 2018, Person A denied his request for
travel to conduct training. Complainant claimed he was attending the training in various capacities
as trainer/instructor, unit point of contact, to provide transportation for volunteers, and as observer.
Complainant noted he provided his TDY request to Person A on March 20, 2018, and was told on
April 9, 2018, that his TDY request was denied. Complainant stated he spoke to Person D who he
claims told him that he should have been allowed to attend the training to support the volunteers
and assist with the training.

2020001401	5
Person A stated she did not deny Complainant the opportunity to function as a trainer. 	She
explained there was no request for travel to conduct training. 	She noted the “welcome letter”
provided showed Complainant as the “transportation coordinator.” Person A stated Complainant
did not have the approval from the command prior to agreeing to assist the Readiness Division.
The record contains an April 2, 2018 Memorandum for Family Program University Attendees with
the subject “Welcome Letter 	88 th Readiness Division.” 	Complainant is listed on this letter as
Transportation Coordinator.
Person D noted that Complainant’s position is three levels below him. 	Person D stated when
Complainant’s concern reached him, he recommended Complainant speak to the Commanding
General and an investigation was initiated.
Person B recalled the training request from Complainant could not be validated. Person B stated
that Complainant’s request for training was a request to be the “Transportation Guide” for several
soldiers attending the training. 	Person B noted when the request was questioned, Complainant
stated he would be present for moral support for the soldiers during their training. Complainant
was specifically asked what his role would be while the training was being conducted and he
responded, he would be present for moral support for the soldiers. Person B stated there was no
requirement for moral support during training.
Regarding the whole complaint, we find that Complainant has failed to show that similarly situated
persons were treated better than Complainant. Upon careful review of the AJ’s decision and the
evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly
determined that the preponderance of the evidence did not establish that Complainant was
discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, the Agency’s final action finding no discrimination is AFFIRMED.
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.

2020001401	6
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).
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.

2020001401	7
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
November 18, 2020
Date