EEOC Appeal 2019005213

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Erik S.,1
Complainant,
v.
David Bernhardt,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 2019005213
Hearing No. 570-2017-00504X
Agency No. DOI-NPS-16-0259
DECISION
Complainant 	appeals 	to 	the 	Equal 	Employment 	Opportunity 	Commission 	(EEOC 	or
Commission) from the Agency’s final order dated June 19, 2019, finding no discrimination
regarding his 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, we AFFIRM the Agency’s final order finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Lieutenant, SP-083, with
the United States Park Police (USPP) in Washington, D.C. He served as a Shift Commander for
the Field Operations Division up until December 13, 2015, at which time he began serving as the
Commander, Major Crimes Unit, USPP in Washington, D.C.
Complainant indicated that he was hired in July 1992 and had been with the USPP for 24 years.
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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He applied for a promotion from Lieutenant to Captain in 2015 and 2016, but he was not
selected. 	Complainant believed that he was qualified for these positions but was not selected
because of discrimination.
On March 9, 2016, Complainant filed his complaint, which was later amended, alleging
discrimination based on race (African American), color (black), age (over 40), and in reprisal for
prior EEO activity when:
1. 	On September 18, 2015, he was not selected for the Captain, Central District, Icon
Protection Branch, Homeland Security Division, and the Captain, Special Forces, Icon
Protection Branch, Homeland Security Division positions;
2. 	On October 8, 2015, he was not selected for the Captain, East District, Patrol Branch,
Operations Division position;
3. 	On 	June 	29, 	2016, 	he 	was 	not 	selected 	for 	the 	Assistant 	Commander, 	Training
Branch/Personnel Security, Training Branch, Services Division position; and
4. 	On August 17, 2016, he was not selected for the Commander (Captain), East District,
Patrol Branch, Field Operations Division position.
Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). 	On December 17, 2018, the Agency filed a Motion for
Summary Judgment and Complainant filed his response on January 23, 2019. 	Thereafter, the
Agency filed a Reply to Complainant’s response. 	On June 17, 2019, the AJ issued a decision
without holding a hearing, finding no discrimination. 	Therein, the AJ adopted the Agency’s
statement of undisputed facts in the Agency’s motion. The AJ noted she did not read
Complainant’s case as alleging an adverse impact claim, in part because he identifies no facially
neutral policy or practice alleged to have a discriminatory adverse impact. Rather, Complainant
rightly points out that disparities in representation may serve as evidence of a pattern or practice
of discrimination in support of a claim for disparate treatment. 	The AJ found beyond
Complainant’s cursory allegations of racial disparities in management, he failed to demonstrate a
disputed issue of material fact as to whether the Agency’s asserted justifications for its selections
are pretextual.
The Agency’s final order implemented the AJ’s decision. 	Complainant appeals the Agency’s
final order.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure.

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The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). 	In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. 	Id. at 249. 	The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. 	Id. at 255. 	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 this case, we find that the AJ properly issued a decision without a hearing because no genuine
dispute of material fact exists.
To prevail in a disparate treatment claim such as this, 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
he or 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 804 n. 14. The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). 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).
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, nondiscriminatory 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).
Regarding claim 1, a Major (M1) and the Commander, Icon Protection Branch, Homeland
Security Division, stated that 22 applicants applied for the Captain, Central District position at
issue. 	M1 indicated that he was looking for someone with high interpersonal skills, business
acumen, and political savviness.

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M1 stated that he reviewed the applicants’ most recent performance evaluation, i.e., FY (Fiscal
Year) 2014 for the period from October 1, 2013 to September 30, 2014, including their
supervisors’ written description on their performance. 	Based on this, M1 and M1’s Deputy
Chief (DC1) decided to recommend three top applicants who all had the rating of Exceptional
(highest to lowest ratings were Exceptional, Superior, Fully Successful, and Unsatisfactory). M1
stated that Complainant was not one of the three because he had the rating of Superior for his
FY2014 performance evaluation. 	M1 and DC1 recommended Selectee (SE1), one of the three,
as the most qualified applicant for the position to their Assistant Chief. 	DC1 noted that SE1, a
Lieutenant and the Assistant Commander, Criminal Investigations Branch, was chosen to serve
as the Commander of the Internal Affairs and he had a proven performance record.
The 	Assistant 	Chief 	indicated 	that 	he, 	concurring 	with 	M1 	and 	DC1, 	forwarded 	his
recommendation of SE1 to his Chief who was the Selecting Official (SO) for the position at
issue.
The SO indicated that he did not interview applicants. 	The SO stated that he, concurring with
the recommendation from his Assistant Chief, selected SE1. 	The SO stated that SE1 had
exceptional leadership skills and a diverse career with the USPP; he served as a Commander of
the Criminal Investigative Branch and a member of the Motorcycle Unit; and he graduated from
the FBI National Academy.
Regarding the Captain, Special Forces position at issue, the SO stated that he followed the same
procedures 	as 	described 	above. 	M1 	indicated 	that 	there 	were 21 	applicants, 	including
Complainant. M1 stated that after reviewing the applicants’ latest performance evaluations and
considering their special force background, he and DC1 recommended the top three applicants
for the position. They recommended SE2, a Lieutenant and the Special Project Manager, Service
Division, as the top choice to the Assistant Chief. 	SE2 received an Exceptional performance
evaluation rating for FY2014.
The Assistant Chief indicated that he concurred with M1 and DC1’s recommendation. He stated
that SE2 was the most qualified applicant since he had previous experience in the Special Forces
Branch. The SO stated that he, concurring with his Assistant Chief’s recommendation, selected
SE2. The SO stated that SE2 demonstrated exceptional leadership supervising approximately 90
personnel.
Regarding claim 2, a Major (M2) and the Commander, Patrol Branch, indicated that there were
ten applicants, including Complainant for the Captain, East District, Patrol Branch, Operations
Division position at issue. 	M2 stated that he reviewed the applicants’ letters of interest for the
position and their latest performance evaluation. M2 noted that the applicants’ letters of interest
varied stating why they felt they were a unique fit for the position. 	M2 indicated that
Complainant only submitted a memo (one page) stating that he was interested in the position
without stating any details as to why he felt he was a unique candidate for the position. 	M2
stated that he was also looking for a candidate who demonstrated administrative abilities.

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After a review of the applicants’ documents and his personal knowledge of these candidates, he
recommended three applicants for the position.
A Deputy Chief (DC2) and the Commander, Field Operations Division, indicated that he
reviewed M2’s recommendation and forwarded it to the Assistant Chief for consideration. DC2
indicated that among the three applicants recommended by M2, he recommended SE3, a
Lieutenant and the Commander of the Internal Affairs Unit, for the position due to his
leadership, the diversity of his experience and assignments; his track record of collaboration
relative to the Agency’s mission; and his proven performance record. The record indicates that
SE3 submitted his letter of interest (three pages) describing the details of his accomplishments
and his qualification for the position. The record further indicates that SE3 received the rating of
Exceptional for his FY2014 performance evaluation.
The Assistant Chief stated that he concurred with DC2 that SE3 was the most qualified applicant
for the position. The SO, concurring with the Assistant Chief, selected SE3 for the position. The
SO indicated that he previously supervised SE3 and during that time, SE3 had great performance
and SE3 produced well prepared reports.
Regarding claim 3, a Major (M3) and the Commander, Training Branch, indicated that he
reviewed all nine applicants’ documentation, including Complainant’s, and recommended the top
three applicants for the Assistant Commander, Training Branch/Personnel Security position at
issue. M3 stated that the position at issue was responsible for the Medical Program Specialists,
Training Staff, and Personnel Security Staff and had to be in compliance with the Force Physical
examination. M3 indicated that Complainant and some other applicants were not in compliance
with this Force Physical requirement and did not make it to the top three. 	M3 stated that he
forwarded his recommendation to his Deputy Chief (DC3).
DC3, concurring with M3, recommended to the Assistant Chief that SE4, a Lieutenant, was the
most qualified applicant due to his management style, military background, and his ability to
plan and direct projects. DC3 noted that SE4 had worked as the Executive Officer to the Chief,
Assistant Commander of the Central District, and Commander of the Special Events Office. The
record indicates that SE4 received an Exceptional rating for FY2014 performance evaluation.
The Assistant 	Chief 	concurred 	with 	DC3’s 	recommendation. 	The SO 	selected 	SE4 	as
recommended.
Regarding claim 4, DC2 indicated that the Commander (Captain), East District, Patrol Branch,
position was filled by SE5 as a result of a settlement agreement of another EEO complaint.
After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the complaint was properly decided without a hearing
and that the AJ properly adopted the Agency’s statement of undisputed facts. Upon review, the
AJ found, and we agree that there is no evidence that the Agency’s articulated reasons were
untrue or otherwise indicative of pretext.

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Although Complainant claimed that he was more qualified than the selectees due to his longer
years of service within the Agency, there is no evidence length of service within the Agency was
required for the positions at issue. 	Furthermore, the record indicates that all selectees received
the highest rating of Exceptional for their most recent performance evaluation (FY2014) whereas
Complainant received the lower rating of Superior. We find that Complainant failed to show that
his qualifications for the positions were plainly superior to the selectees’ qualifications. 	See
Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). 	Based on
the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated
by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final order finding no discrimination 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.
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.

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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
June 24, 2020
Date