Please ensure Javascript is enabled for purposes of website accessibility

Army prevails on man’s failure-to-promote claim

Virginia Lawyers Weekly//January 12, 2023

Army prevails on man’s failure-to-promote claim

Virginia Lawyers Weekly//January 12, 2023//

Listen to this article

Where a former Department of Defense employee argued that discrimination was the reason why he was not interviewed for a promotion, but the Army maintained he didn’t meet a high enough assessment score to qualify for an interview, and there was no facts suggesting this reason was a pretext for discrimination, the Army prevailed on the claim.


Plaintiff filed this action on Feb. 23, 2021, pursuant to Title VII of the Civil Rights of 1964 and the Age Discrimination and Employment Act of 1967, or ADEA, alleging retaliation and discrimination during his time employed by the Department of Defense in Ramstein, Germany. After the close of discovery, the defendant moved for summary judgment on all four counts of the complaint.


A plaintiff must exhaust administrative remedies before filing suit in a federal district court. Here, plaintiff does not dispute that he did not raise in administrative proceedings any claims related to the 2017 failure to hire him for a supervisory position or the 2019 failure to enroll him in the priority placement program. Defendant is therefore entitled to judgment in his favor as a matter of law as to any liability based on those two events.

The defendant also argues that any claim regarding the failure to extend the plaintiff’s overseas tour in 2018 should also be dismissed for failure to bring this claim to an EEO counselor within 45 days of notice of the adverse action. In response, the plaintiff argues that he was permitted to amend his initial EEO complaint, and that the agency accepted all his amended claims for investigation—which includes his claim pertaining to the extension of his overseas tour. However, after initially choosing to investigate the claim regarding plaintiff’s requested extension of his overseas tour, the EEO office subsequently dismissed the claim regarding the overseas tour extension as untimely.

Plaintiff also argues that the 45-day requirement was tolled until he discovered facts indicating that the adverse action was discriminatory, and that he did not discover such facts until March 2019. The Fourth Circuit has expressly rejected such a discovery rule, holding instead that the time to file a complaint seeking an administrative remedy runs from the date of the discrete act and not the date a plaintiff receives notice of “a discriminatory effect or motivation.”


With respect to plaintiff’s claim based on a failure to interview him for the 2019 promotion, the defendant has asserted the legitimate non-discriminatory reason that the plaintiff did not meet a high enough assessment score to qualify for an interview. Plaintiff argues that regardless of his score he was qualified for the position based on his experience and track record.

But the plaintiff’s perception of his own qualifications and performance is not relevant to whether he possessed the required qualifications for the position sought, and the plaintiff has not pointed to any facts that would allow a factfinder to conclude that he was qualified for the supervisor position based on the qualification requirements set by his employer.

Nor has he proffered any facts that would support a claim that the reason given for his receiving an interview was a pretext for discrimination. According, there is no genuine dispute of material fact and defendant is entitled to judgment as a matter of law on plaintiff’s claim based on his not receiving an interview

As for any claim based on the failure to be hired for the Denver VA position, the undisputed facts show that the plaintiff ultimately made the choice to withdraw his application, and therefore did not suffer any adverse employment action. In addition, the defendant has also offered the legitimate non-discriminatory justification for the disputed action, and there has been no proffered evidence to support any contention that that this reason was a pretext for discrimination.


Plaintiff argues that the court should find, notwithstanding the lack of temporal proximity, a causal connection between the plaintiff’s EEO complaints and the adverse employment actions he suffered. But plaintiff has not proffered facts sufficient to show sufficient intervening retaliatory events that could prove a causal connection to substantiate a claim for retaliation.

Defendant’s motion for summary judgment granted.

McGrone v. Austin, Case No. 1:22-cv-375, Dec. 21, 2022. EDVA at Alexandria (Trenga). VLW 022-3-555. 13 pp.

Editor’s note: A version of this digest that appeared in the Jan. 16, 2023, print issue misidentified the case as VLW No. 022-3-557.

VLW 022-3-555

Virginia Lawyers Weekly

Verdicts & Settlements

See All Verdicts & Settlements

Opinion Digests

See All Digests