EEOC Appeal 2019004998

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melvin S.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2019004998
Agency No. ARCEJAPAN17JUN03092
DECISION
On June 28, 2019, 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 21, 2019 final decision 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Engineering
Technician, GS-12, in the Agency’s Japan Engineering District (JED) - Okinawa Area Office
(OAO).
In JED-OAO, Complainant’s first-level supervisor was the Resident Office Mechanical Engineer
(S1), his second-level supervisor through June 2016 was the OAO Resident Engineer (S2) and
beginning June 2016 was the replacement OAO Resident Engineer (S3), and Complainant’s third
level supervisor was the JED Construction Division Chief (S4). The end of May 2017,
Complainant transferred to a position as a Construction Control Inspector, GS-12, in the Agency’s
Resident Area Office-Galveston District, located in Corpus Christi, Texas.
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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On July 19, 2017, Complainant initiated EEO contact alleging that the Agency discriminated
against him on the bases of disability (Depression, Tinnitus, Hypertension, Chronic Obstructive
Pulmonary Disease, poor eyesight, hearing loss, partial paralysis/neuropathy), age (65), and
reprisal for prior protected EEO activity (September 2013 complaint and civil action) when:
1. on July 8, 2017, the JED Construction Division Chief, S4, copied
Complainant’s new supervisor and a former supervisor on an email
regarding Complainant’s Permanent Change of Station Travel Voucher
although the new supervisor was not involved in the matter and the former
supervisor did not have a need to know;
2. on July 15, 2017, OAO leadership humiliated Complainant at his farewell
luncheon when it failed to give him any awards and Safety and Area
Engineer group leaders, S3 and S4, did not attend the event;
3. on December 9, 2016, management issued Complainant a score of “2” on
his Senior System Civilian Evaluation Report;
4. on June 3, 2015, the OAO Area Engineer, S2, admonished Complainant for
contacting the Criminal Investigation Command (CID) about a contractor’s
deficiencies, rather than utilizing Agency-Contractor protocol; and
5. in early 2016, S2 instructed Complainant, in front of others, to move his
vehicle from a parking spot for individuals with disabilities (accessible
parking) although he had an appropriate decal.
On September 1, 2017, Complainant filed a formal EEO complaint reiterating the same. The
Agency accepted claims (1) and (2) for EEO investigation, and dismissed (3) through (5) pursuant
to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact.
During the EEO investigation, regarding (1), S4 stated that Complainant wanted to depart for his
new position quickly and got a little “rude and disruptive” with the processing clerk for personnel
matters. S1 stated that he just wanted to resolve the matter of Complainant’s travel voucher quickly
so he sent emails to those he thought were Complainant’s supervisors. S4 stated that both the OAO
and Texas Office were paying a portion of Complainant’s travel voucher costs. S1 stated that he
was not previously aware of Complainant’s prior EEO activity.
For (2), Complainant’s Direct Supervisor, S1, stated that he was unaware that the safety award
process required him to initiate a request. S1 stated, by the time he learned of the process, it was
too late to have an award by Complainant’s departure. He stated that the process requires about
30 days and he learned of the process about 10 days before Complainant’s departure. S1 stated it
was more a lack of knowledge on the subject than a decision. S1 stated that OAO leadership does
not attend all farewell luncheons, but will attend depending upon their hectic schedules or physical
distance from the event. S1 stated that he was able to have an appreciation plaque made prior to
Complainant’s departure but not prior to his luncheon. Additionally, S4 stated that his office is in
Mainland Japan, which is a two-hour flight from Okinawa, so he generally does not attend farewell
events outside of his immediate office. In addition, S4 stated that he and S3 were at a meeting that
particular week.

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Regarding (4), S2 stated that he knows Complainant utilized accessible parking, but he does not
recall instructing Complainant to move his car from such parking. Further, for (5), S2
acknowledged instructing Complainant to use Agency Quality Assurance Process and Procedures,
rather than CID, to address contractor deficiencies. S2 stated that he also informed Complainant
to inform the applicable Resident Engineer of systemic concerns with contractors.
Following the EEO investigation, 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
(AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
The instant appeal from Complainant followed. On appeal, Complainant stated that incident (3)
should be viewed as supporting evidence and incidents (4) and (5) are incidents in a claim of
hostile work environment with (1) and (2).
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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 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, non-discriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must 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); Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981).

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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, non-discriminatory 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. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination
based on age, disability, or reprisal, the Agency articulated legitimate, nondiscriminatory reasons
for its actions in (1) and (2). For (1), the Agency stated that it informed Complainant’s departure
and arrival offices of issues regarding his travel voucher as both offices were to pay related costs.
Further, the Agency stated that Complainant was giving the personnel processor some problems
regarding the travel voucher and wanted to resolve the concerns quickly. Regarding (2), the
Agency stated that Complainant’s supervisor was not familiar with the process and time required
to request farewell awards. The Agency stated that Complainant was given an appreciation plaque
prior to his OAO departure. The Agency stated that S3 and S4 attend employee events based on
their hectic schedules and physical distance from the office.
Harassment
To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find
that Complainant failed to prove, by a preponderance of the evidence, that the actions complained
of were based on age, disability, or reprisal. We conclude that a finding of harassment is precluded
by our determination that Complainant failed to establish that the Agency’s actions were motivated
by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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.

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“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
May 13, 2020
Date