EEOC Appeal 2020001530

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tyra F.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020001530
Hearing No. 480-2019-00476X
Agency No. ARSHAFTER18MAY01758
DECISION
On June 25, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s October 9, 2019 final action concerning an 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
On June 25, 2018, Complainant, a former Child and Youth Services (CYS) Workforce Preparation
Specialist, NF-0301-03 with the Directorate of Family Morale Welfare and Recreation Fund
(DFMWR), at the Agency’s U.S. Army Garrison Hawaii in Schofield Barracks, Hawaii, filed the
instant formal complaint. Complainant claimed that the Agency discriminated against her on the
bases of race (Samoan) and in reprisal for prior EEO activity when, on March 29, 2018, she became
aware that she had not been selected for the NF-1701-04 CYS Facility Director position advertised
under Vacancy Announcement Number WENAFEW1710038522.
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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After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
Findings and Conclusion Without a Hearing. Complainant did not file a response. On August 28,
2019, the AJ issued a decision by summary judgment in favor of the Agency.
The instant appeal followed.
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. While Complainant argues on appeal, in summary fashion, that he should have been
permitted to depose the selection panel members prior to the imposition of summary judgment, he
has failed to identify with any specificity any evidence of record that would indicate the
depositions would have led to the need for a hearing. 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). 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).

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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 AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint.
On May 22, 2015, Complainant resigned from her former position, CYS Workforce Preparation
Specialist with DFMWR.
Later, a vacancy announcement (Vacancy Announcement Number WENAFEW1710038522)
opened for the position of CYS Facility Director, NF-1701-04, with one vacancy at Fort Shafter,
Hawaii. Complainant applied for the position and she was considered along with thirteen other
applicants.
The CYS Youth Administrator (Caucasian) was the selecting official. She convened a review panel
that 	consisted 	of 	herself 	and 	two 	other 	Agency 	officials 	(Asian/Filipino 	and
Japanese/Chinese/Hawaiian. 	The 	panel 	reviewed 	the 	applicants’ 	resumes 	and 	conducted
interviews. Following the interviews, the panel recommended the selectee (Pacific Islander/Native
Hawaiian) for the subject position because of her high score and extensive work experience. The
record reflects that the selectee was ranked first by the panel with a score of 265, while
Complainant was ranked third with a score of 219.
The selecting official stated that the panel rated the applicants’ resumes by education, experience
and knowledge of the CYS Facility Director position. The selecting official stated that she and
the other two panel members rated the applicants’ resumes and interviews “during the selection
process, so the applicants were rated on how they did in the interview and also how they did with
writing their resumes.” 	She noted that the panel discussed each applicant’s interview and then
each panel member scored the applicants on his or her own.
Following 	the 	interviews, 	the 	selecting 	official 	stated 	that 	she 	and 	the 	panel 	members
recommended the selectee for the subject position “because of how she answered the interview
questions. Also, she scored high in resume ratings. Additionally, [selectee] previously worked as
a Child and Youth Administrator (CYA) and she has been an Acting Director and Assistant
Director, and she did very well in the interviews.”
The selecting official explained that the panel did not recommend Complainant because the panel
felt that the knowledge of the position at the time was more in favor for the selectee and “it just
came down to the interviews, how the candidates answered the interview questions, and how well
their resumes were written.” 	She also noted that the selectee had a master’s degree, which
Complainant did not.2
2 Complainant stated that months after being interviewed for the subject position, during a
mediation session after she complained about the selection, the Agency “came back to say that

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Here, the undisputed facts fully support the AJ’s determination that the selecting official clearly
articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a
preponderance of the evidence, that these proffered reasons were a pretext designed to mask race
discrimination or unlawful retaliation. 	The evidence clearly establishes that Complainant was
granted an interview and after considering all candidates, Complainant was ranked third out of
thirteen applicants considered for the position. The position was offered to the candidate that the
three panelists unanimously deemed most qualified based on her prior work experience directing
youth facilities and her master’s degree.3 We concur with the AJ’s assessment that an objective
comparison of Complainant's and the selectee’s resumes demonstrates the selectee possessed
superior qualifications in both experience and education. Complainant has not shown that the
alleged disparities in qualifications between herself and the selectee are “of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could have chosen
the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th
Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). Beyond her
bare assertions Complainant has not provided any evidence that the focus on consecutive
management experience was unreasonable or tainted by considerations of race or retaliatory
animus. Regarding Complainant’s retaliation claim, while it is undisputed that she had filed prior
EEO complaints, those complaints were filed in 2012 and 2014, years prior to the selection at issue
and there is no evidence that any of the panelists were involved with these prior complaints or even
had any knowledge of them.
.
CONCLUSION
We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding
no discrimination.
[Complainant] was not qualified for this position as she only had 20 credits in which she needed
24 credit to qualify for this position.” The Human Resources Officer (Asian) stated that 24 credits
are a requirement for the subject position “so, if she had shown her transcripts during the interview
process that would be a reason for her not being qualified. Any of the 24 credits has to fall under
childhood education, special education, or early childhood education or any related type of
behavior science for kids.”
3 In the end, it appears the position was not filled and the vacancy announcement was cancelled.
The reason for this is unclear in the record.

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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. “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.

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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
September 17, 2020
Date