EEOC Appeal 2019005988

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fredrick A.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Threat Reduction Agency),
Agency.
Appeal No. 2019005988
Agency No. DTRA19003
DECISION
On September 6, 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
August 12, 2019, final decision 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.
BACKGROUND
During the period at issue, Complainant worked as a Balanced Survivability Assessment Team
Chief, GS-0801-14 at the Agency’s Defense Threat Reduction facility in Fort Belvoir, Virginia.
On March 1, 2019, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him based on race (bi-racial) when he was not given the opportunity to
compete for the position of Supervisory Security Specialist, GS-15, because Agency officials
failed to announce the position via internal email in accordance with office practices.2
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 We note here that Complainant’s formal complaint also included 4 additional claims regarding
non-selections, removal of duties and training. The Agency dismissed the claims in a partial

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Complainant contends that on November 19, 2018, he learned that another person was hired as the
GS-15 Supervisory Security Specialist in the department where he held a GS-14 position.
Complainant alleges that he was not given adequate opportunity to compete for the position when
the Agency did not send an internal email advertising the position as is customary, according to
Complainant.
According to the Agency, the position at issue was advertised through USAJobs from October 19
through October 26, 2018 under Vacancy No. DTRA-19-10333375-MP. The Agency’s Human
Resources (HR) specialist further indicted that the vacancy adhered to the provisions of its
agreement with the service provider responsible for advertising vacancies within the Agency
which does not require any additional method of advertising vacant positions. Moreover, there is
no evidence that Complainant applied for the position at issue. The record indicates that the
certificate of those eligible for the position contained two candidates, neither of which was
Complainant.
After an 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). In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed.
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”).
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing a prima facie case by demonstrating that he or she was subjected to an adverse
employment action under circumstances that would support an inference of discrimination. Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13.
dismissal decision. Because Complainant fails to address these dismissals in the instant appeal we
will not address them here.

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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has
met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the
evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v.
Hicks, 509 U.S. 502, 519 (1993).
Even assuming that Complainant established a prima facie case of race discrimination, we find
further that the Agency articulated legitimate, non-discriminatory reasons, for the alleged
discriminatory conduct. Specifically, management witnesses testified that the position was openly
advertised on USAJobs, the federal government job site, for a week. Complainant was not
considered for the position because he did not apply. While Complainant challenges the fact that
the opening was not also advertised internally, there is no evidence beyond his bare assertions that
this occurred as a result of discrimination based on his race. We conclude that Complainant has
failed to prove, by a preponderance of the evidence, that the Agency’s explanation is pretext
masking discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
finding of no discrimination for the reasons set forth herein.
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.

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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.
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
May 12, 2020
Date