EEOC uphold Final Agency Decision finding no discrimination against federal employee. Complainant filed and Equal Employment Opportunity (EEO) complaint alleging discrimination on the basis of disability (borderline hypertension) when the Agency did not select him for the position of Special Officer. Following the initial investigation, the Administrative Judge (AJ) issued a summary judgment decision in favor of the Agency reasoning that even making all inferences in favor of Complainant, the Complainant had not presented sufficient evidence to prove a causal link between his disability and non-selection, pretext for discrimination by the Agency, and cancellation of the position vacancy. The Agency issued a Final Agency Decision (FAD) adopting the AJ’s finding, and Complainant appealed to the Equal Employment Opportunity Commission (EEOC).

On appeal the EEOC’s Office of Federal Operations (OFO) held that Complainant failed to establish a prima facie case of discrimination because he was unable to show that he was treated less favorably than similarly situated applications. Even assuming the Complainant had established a prima facie case of discrimination, the Agency was able to articulate legitimate non-discriminatory reasons for Complainant’s non-selection- namely due to derogatory information uncovered during a necessary background investigation for Complainant to be granted a top security clearance that was required for the position. The OFO also noted that the Agency officials responsible for the hiring process were unaware of Complainant’s disability. As a result, the OFO affirmed the Agency’s FAD finding no discrimination.

Milan S. v. Department of Homeland Security, EEOC Appeal No. 2019001410 (September 16, 2020)

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