Caleb F.,1 Complainant,v.Mick Mulvaney, Acting Director, Consumer Financial Protection Bureau, Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0120171176 (E.E.O.C. Nov. 16, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Caleb F.,1
Complainant,

v.

Mick Mulvaney,
Acting Director,
Consumer Financial Protection Bureau,
Agency.

Appeal No. 0120171176

Hearing No. 570-2014-00857X

Agency No. CFPB-2014-0005-F

DECISION

On February 8, 2017, 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
December 1, 2017 final order concerning an equal employment opportunity (EEO) complaint
claiming employment discrimination in violation of discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant was an applicant for a Consumer Response Specialist, at
the Agency’s headquarters facility in Washington, D.C.

On November 18, 2013, Complainant filed a formal complaint. Complainant claimed that the
Agency discriminated against him on the bases of race (African-American), color (black),

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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disability (lower lumbar stenosis and foot drop), age (54), and in reprisal for prior protected EEO
activity when:

a) On October 18, 2013, Complainant was not selected for the position of Consumer
Response Specialist advertised under Vacancy Announcement Number 13-CFPB-
452A; and

b) The Agency’s aforementioned non-selection was reprisal for filing an EEO
complaint on August 22, 2013.

After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of the right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the
case granted the Agency’s January 22, 2016 motion for a decision without a hearing and issued a
decision without a hearing on December 5, 2016. The Agency subsequently issued a final order
adopting the AJ’s finding of no discrimination.2

The instant appeal followed. On appeal, Complainant argues that the AJ did not consider the
exhibits that he had attached to his motion opposing summary judgment. Complainant noted that
during the interview for the subject position, he was instructed to limit his responses about his
work experience to the latest five years. Complainant contends that this restriction excluded his
relevant experience as an auditor for the Department of Labor from 1987 to 1991 as well as his
work experience as a mortgage investigator for the Department of Housing and Urban
Development from 1991 to 2008.

Complainant further argues that he was more than qualified for the position for which he applied.
Complainant also questions the Agency’s delay in scheduling his written assessment. Complainant
asserts that the Agency workforce was predominantly under age 40 and Caucasian. In support of
his position that the Agency practiced ageism and racism against African-Americans, Complainant
submitted reports from the Government Accountability Office (GAO), the Agency’s Office of
Inspector General and its Office of Minority and Women Inclusion. He also attaches a statement
from the House Committee on Financial Services criticizing the Agency over continuing
discrimination problems.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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.

2 We presume, for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.
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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. If a case can only be
resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not
appropriate.

In order 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. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must
first establish a prima facie case 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 Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once an agency has met its burden, a 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 Reeves v. Sanderson Plumbing Prod., Inc.,
530 U.S. 133, 143 (2000) and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

However, if the Agency has articulated a nondiscriminatory reason for its selections, this
Commission can dispense with the prima facie inquiry of Mc Donnell Douglas and the factual
inquiry can proceed directly to the ultimate issue of whether Complainant has shown by a
preponderance of the evidence that the Agency's explanations for its decisions were pretextual, to
mask unlawfully discriminatory motivations. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711,713-714(1983). A complainant is entitled to a rationale for management’s action
that provides an opportunity to attempt satisfy his ultimate burden of proving pretext. See Wilson
v. Dep’t of Veterans Affairs, EEOC Appeal No. 01995055 (Dec. 21, 2001).
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In a non-selection case such as the present one, a complainant may show that an agency’s reason
for nonselection was a pretext by demonstrating that his qualifications were “plainly superior” to
those of the selectee. Wasser v. Dep’t. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

The Agency received approximately 500 applications. The record reflects that 120 applicants were
interviewed and 30 were selected. Among the selectees, 9 were African American, 8 were over
forty years of age, and 4 reported having disabilities. The record corroborated the Agency’s
position that it did not select Complainant because of his performance on the blind- scored written
assessment or the in-person interview. Out of 5.00 points in both components, Complainant scored
1.00 and 1.56 respectively. According to the Agency, when asked the same questions posed to all
of the interviewees, Complainant gave answers that were “stale” and “superficial.” The record
reflects that the Agency considered Complainant’s past experience in enforcement of financial
regulations, but determined that Complainant failed to demonstrate current knowledge that was
relevant to this specific vacancy. Moreover, the Agency had discretion to choose among qualified
interviewees. See Taylor v. U.S. Postal Serv., EEOC Appeal No. 01871359 (Jan. 20, 1988)
(applying Burdine at 258-259 in rejecting a claim of age discrimination where the Agency
considered the non-selectee’s prior experience after six years working in different programs to
lack recency.)

We considered Complainant’s position that he presented, to the AJ and now on this appeal,
documents (from the Agency, Congress, and the GAO) the evidenced his claims that the Agency
subjected him to discrimination and retaliation. We determine that these government publications
fail to establish pretext or reprisal in his individual nonselection case. Complainant’s exhibits
would not lead a reasonable fact-finder could conclude that the Agency's non-discriminatory
explanation was a pretext for unlawful discrimination. See Howard v. U.S. Postal Serv., EEOC
Request No. 0520110077 (Jan. 21, 2011).

CONCLUSION

Based on a thorough review of the entire record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s decision without a hearing, finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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.
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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.

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.

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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

November 16, 2018
Date