EEOC Appeal 2020001604

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mac K.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020001604
Agency No. ARMYER18OCT03909
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 26, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. 	For the following reasons, the Commission AFFIRMS the
Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment
at the Agency’s facility in Fort Myer, Virginia. On October 8, 2018, Complainant filed an EEO
complaint, that was later amended, alleging that the Agency discriminated against him on the bases
of his race (Afro-American/Native American), color, age (58 at the relevant time), and in reprisal
for prior protected EEO activity when: (1) on September 17, 2018, he was notified that he was not
selected for the position of Security Guard, GS-0085-06; and (2) his response to one of the
questions asked during his interview for the position at issue was misinterpreted and led to his non-
selection.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 In his formal complaint, Complainant also alleged discrimination with respect to an incident
occurring in 1985. The Agency dismissed this claim, pursuant to 29 U.S.C. §1614.107(a)(2), for

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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). In accordance with Complainant’s request,
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. On
appeal, Complainant reiterates his contention that he was subjected to unlawful discrimination.
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, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction 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. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory
reason for its actions. 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 pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000).
Here, we find that assuming, arguendo, Complainant established a prima facie case of race, color,
age, and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the record shows that Complainant was one of at least ten
candidates interviewed for multiple vacancies for the position at issue. The interview panel
consisted of three management officials who asked the same questions of all interviewees and
determined whether each answer was satisfactory or unsatisfactory. At the conclusion of each
interview, 	the panel 	members 	independently decided 	whether 	the interviewee should 	be
recommended for hire. The record shows that one of the questions asked of all interviewees was
“what is your greatest weakness?” to which Complainant responded “women.” All three of the
panelists independently indicated in their interview notes that they deemed this response
unsatisfactory.
untimely EEO Counselor contact. Upon review, we affirm the Agency’s dismissal of this claim.
We note that Complainant has not apparently challenged the dismissal of this claim on appeal.

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One of the panel members stated that Complainant’s response was a “red flag” and that it was
concerning to him “that someone should walk in and give that answer to the hiring panel.” A
second panel member stated that he believed the response was “unprofessional and displays a lack
of self-control.” Because the panel members unanimously recommended that Complainant not be
hired, he was not selected for the position at issue. Although Complainant contends that this
response was “misinterpreted,” there is no evidence to suggest that even if the three panel members
misinterpreted his response to the question, that they were motivated by discriminatory or
retaliatory animus when they did not select him for the security guard position. Accordingly, we
find that Complainant has not shown that the Agency’s articulated reasons for its actions were
pretextual.
CONCLUSION
The Agency’s final decision is AFFIRMED.
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.

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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. 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 21, 2020
Date